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enA Humane Approach Can Work: The Effectiveness of Alternatives to Detention for Asylum Seekershttp://www.immigrationpolicy.org/special-reports/humane-approach-can-work-effectiveness-alternatives-detention-asylum-seekers
<p><p>For decades, the U.S. refugee protection system has been a symbol of the nation’s generosity and openness to the world’s persecuted.&nbsp;Yet since Congress’ enactment of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), asylum seekers arriving at the United States-Mexico border have been subject to mandatory detention and summary deportation processes, resulting in the deportation of countless persons in need of protection.</p>
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<p style="text-align: center;"><a href="http://immigrationpolicy.org/sites/default/files/docs/a_humane_approach_can_work_the_effectiveness_of_alternatives_to_detention_for_asylum_seekers_final.pdf"><img src="/sites/default/files/thumbnail_atd.png" width="150" height="194" style="margin: 0px;" /></a></p>
<p style="font-family: Arial, Helvetica, sans-serif; line-height: 18px;"><span style="font-family: Arial, Helvetica, sans-serif; line-height: 1.5; text-align: right;">&nbsp; By <a href="http://immigrationpolicy.org/ipc-staff#noferi">Mark Noferi, Esq.</a></span><b style="font-family: inherit; line-height: 1.5; text-align: right;">&nbsp;</b></p>
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<p>Empirical research has found, however, that asylum seekers fleeing persecution arrive predisposed to comply with legal processes and trust the system to provide them a fair hearing, even if they might lose. If the U.S. government treats asylum seekers fairly and humanely—i.e., releases them following their apprehension and provides legal assistance before their hearing—evidence suggests that they will be likely to appear for proceedings. Put simply, a humane approach can work.</p>
<p>This report reviews emerging research on the release of asylum seekers from detention, including the impact of various forms of alternatives to detention (ATD), summarizes the primary harms caused by immigration detention, and argues that releasing asylum seekers (on alternatives as needed) and affording legal assistance can protect the rights of asylum seekers and facilitate compliance with proceedings and legitimate removals, at far less human and financial cost than detention.</p>
<h2 style="font-family: Arial, Helvetica, sans-serif;"><b>Evidence Indicates That Asylum Seekers Provided Alternatives to Detention and Legal Assistance Will Comply with Proceedings</b></h2>
<p>For years, quantitative studies have showed that asylum seekers comply with proceedings (i.e., appear for interviews and court hearings) at high rates. But increasingly, qualitative researchers, primarily outside the United States, have begun examining the reasons for compliance and identified best practices for use in the field. This qualitative research builds upon psychological research showing that when someone in a legal proceeding feels he or she is treated fairly, that person is more likely to view the proceeding as legitimate, and in turn be more likely to appear for hearings and comply with the results of the proceeding. &nbsp;</p>
<p><b>Studies of Alternatives to Detention Show High Rates of Compliance with Proceedings</b></p>
<p>Studies since 1996 have showed very high rates of compliance with proceedings by asylum seekers who were placed into alternatives to detention (a.k.a. “ATD” or supervised release). A 2000 study, commissioned by the U.S. government and conducted by the Vera Institute of Justice, reported an 83 percent rate of compliance with court proceedings among asylum seekers who were found to have a credible fear in the expedited removal process. The study also showed a compliance rate of 84 percent among asylum seekers who were under minimal supervision, and 78 percent among those simply released without supervision. The Vera Institute concluded that “[a]sylum seekers do not need to be detained to appear…. They also do not seem to need intensive supervision.” Likewise, Canada’s Toronto Bail Program, which uses more restrictive supervision, reported a “lost client” ratio among refugee claimants of 8.42 percent from 2002 to 2003.</p>
<p>Alternatives to detention programs not exclusively involving asylum seekers also have shown extremely high rates of compliance. With respect to the U.S. Immigration and Customs Enforcement (ICE) Intensive Supervision Appearance Program (ISAP), from fiscal years 2011 to 2013, 95 percent of participants in the “full-service” program appeared at their scheduled removal hearings, far exceeding ICE’s FY 2010 target for appearance rates by 37 percent. Various Australian alternatives to detention program pilots have achieved 94 percent compliance across programs. &nbsp;</p>
<p style="font-family: Arial, Helvetica, sans-serif;"><b>Asylum Seekers Are Especially Predisposed to Comply with Removal Proceedings</b></p>
<p>Qualitative research has provided an explanation for these high success rates by demonstrating that asylum seekers are especially predisposed to comply with proceedings. According to a UNHCR-sponsored 2013 study of asylum seekers in Toronto and Geneva, asylum seekers possess a “cooperative predisposition” which derives from four factors.&nbsp;</p>
<p><i>First</i>, the “refugee predicament” and fear of persecution “looms largest” in providing a “strong inducement to comply.” Most interviewees felt they had no choice but to comply with legal processes in order to protect themselves from further persecution. Asylum seekers spoke of their “lack of a Plan B” or the “impossibility of returning home.”&nbsp;</p>
<p><i>Second</i>, asylum seekers have a natural “inclination towards law-abidingness.” Many expressed that “making the refugee claim was a manifestation of faith in legal process.” Indeed, asylum seekers “strongly value the rule of law,” since many “fled nations with substantial rule of law deficiencies.”&nbsp;</p>
<p><i>Third</i>, asylum seekers are inclined to trust the process of determining their claim, and perceive it as fair. Significant numbers of Toronto and Geneva asylum seekers expressed that they expected to enter a “safe haven… where human rights were protected.” Asylum seekers also understood that their claim might not succeed. But they “expected not automatic protection, but a fair hearing.”</p>
<p><i>Fourth</i>, asylum seekers have a strong desire to “avoid irregular residence,” and most prominently detention, with its attendant hardships. (The Vera Institute also found that for U.S. asylum seekers released on supervision, avoiding detention was a primary motivator for them to comply with supervision terms. )</p>
<p><b>Legal Assistance, Without Detention, Fosters Compliance with Removal Proceedings</b></p>
<p>Research on asylum seekers has found that access to early, reliable legal advice is the single most important factor in fostering trust in the legal system and, as a result, ensuring compliance with the adjudicatory process. For example, as one asylum seeker in Toronto said after receiving legal advice, “It is crazy but yeah, I do have trust in the system because I understand it.” Although asylum seekers arrive predisposed to comply with legal processes, compliance is a combination of “knowing the right thing to do and wanting to do it.” And knowing the “right thing to do” requires sound legal advice, especially for asylum seekers who are often confused by the removal process. Legal assistance can make an asylum-seeker aware that he or she may be eligible for relief, and thus make it more likely that he or she will appear at proceedings.&nbsp;</p>
<p>A lawyer or case worker can most effectively foster trust by identifying and discussing all possibilities with a client early on, even if relief initially appears unattainable, in order to help a client understand the system and feel heard. The Vera Institute reported that many asylum seekers attended their hearings because they “felt they had someone on their side during the court process.”</p>
<p>Although data is not yet available for adults, historical U.S. data on children in immigration proceedings suggests that legal assistance can help to ensure compliance. Over a period of more than nine years, 92.5 percent of those children represented by lawyers appeared for their removal hearings, versus 27.5 percent of children not represented by lawyers.</p>
<p><b>Holistic Government Assistance, Without Detention, Also Fosters Compliance with Removal Proceedings and Potentially Removal Orders</b></p>
<p>Government support to asylum seekers—particularly legal assistance, but also social services and housing assistance—also may foster a sense of “belonging” that encourages them to appear for proceedings. For example, Toronto asylum seekers who were placed in residences rather than detention, with access to legal assistance and caseworkers, displayed a “remarkable degree of affection towards Canada” and felt “part of Canadian society.” The researchers found this to be a “strong factor supporting cooperation” with the authorities.</p>
<p>The Vera Institute also found that its U.S. caseworker assistance—which included information on court processes and supervision conditions, referrals to low-cost legal representation, and health, educational, and social services —gave participants a “sense of belonging to life in the United States,” and made them more “willing to buy into cooperation and compliance.” Participants in the Vera program particularly emphasized the program staff’s “kindness and decent treatment” to them, which included “a willingness to take the time to listen and offer constructive guidance.” Vera found that responding to needs as basic as “somewhere to go or someone to call for assistance” contributed the most to a sense of belonging. Subsequently, many Vera program participants expressed that they appeared at their proceedings out of a sense of obligation and gratitude to their caseworkers. &nbsp;</p>
<p>Asylum seekers’ compliance also may be independent of any community ties in the United States, a factor ICE uses to evaluate flight risk. An asylum seeker’s fear of being returned to persecution, and sense of belonging if provided assistance, may incentivize him or her to comply with proceedings even if the individual knows no one in the United States. Therefore, ICE’s current detention risk evaluation, which considers the lack of family or a potential address in the United States to be factors supporting detention, may overestimate the flight risk posed by asylum seekers in immigration proceedings.</p>
<p>Lastly, providing assistance to asylum seekers may further their compliance with removal orders, although further research is necessary on this point. UNHCR researchers found that “early access to trusted advice and support… may help maintain the rejected asylum-seeker's cooperation with the authorities, even if the claim is rejected.” The Vera Institute also found that asylum seekers,&nbsp;<span style="font-family: Arial, Helvetica, sans-serif; line-height: 1.5em;">&nbsp;</span><span style="font-family: Arial, Helvetica, sans-serif; line-height: 1.5em;">albeit for a small sample size,</span><span style="line-height: 1.5;">&nbsp;“comply at very high rates” with removal orders. Vera theorized that assistance may facilitate compliance with a removal order; Vera program participants made points like, “Although I thought the case was not in my favor, I made an obligation to [my caseworkers] and I did not want to let them down.” Vera also found that those who complied with removal orders expressed a desire to one day return legally to the United States if possible.</span></p>
<h2 style="font-family: Arial, Helvetica, sans-serif;"><b>Detention Has Serious Adverse Consequences for Asylum Seekers</b></h2>
<p>Conversely, the adverse impacts of detention upon the vulnerable population of asylum seekers are widely recognized and documented, and include psychological harm, interference with access to legal assistance, and even abandonment of legitimate asylum claims. Given these deleterious effects in a context where a wrong decision can return a person to serious harm or death, it is imperative that ICE explore alternatives, including release on recognizance or on bond, parole, or enrollment in a supervised release program.</p>
<p><b>Detention Causes Psychological Harm</b></p>
<p>Detention facilities for asylum seekers in the United States have been roundly criticized as unnecessarily punitive and abusive. Border Patrol short-term facilities often are overcrowded. In addition, detainees regularly endure verbal and physical abuse, lack of adequate food and water, unhygienic conditions, and temperatures so low as to pose a health risk. For longer-term detention, ICE uses secure facilities (including criminal jails), unlike “open” facilities that allow detainees to leave and return to the facility such as those used by some European countries for asylum seekers.</p>
<p>The detention of asylum seekers in a secure facility for an undefined period causes psychological and physical trauma. Detainees confined under these terms have little information or control over their confinement and often experience circumstances similar to “sensory deprivation.” They develop feelings of “helplessness and hopelessness that lead to debilitating depressive symptoms, chronic anxiety, despair, dread,” and “PTSD [Post-Traumatic Stress Disorder] and suicidal ideation.”&nbsp;</p>
<p>A 2003 comprehensive study of 70 asylum seekers in U.S. detention facilities by Physicians for Human Rights (PHR) and Bellevue Hospital found that 86 percent experienced symptoms of depression, 77 percent anxiety, and 50 percent PTSD. Moreover, Physicians for Human Rights has found that asylum seekers are particularly vulnerable to trauma, because detention exacerbates past traumas that many have experienced. International studies reinforce and complement those findings. For example, immigration detainees in secure Swedish facilities reported that “detention is worse than prison because in prison at least the outcome and the time period are known.” A Canadian study also found increased rates of post-traumatic stress and depression among detained versus non-detained asylum seekers. And although U.S. studies on recent Central American asylum seekers have not yet been conducted, several women have attempted suicide, and many have launched hunger strikes and protests. &nbsp;&nbsp;</p>
<p>Notably, Physicians for Human Rights also reported that the traumas from undefined detention “appear to be <i>independent </i>of the conditions of detention.” For example, even though Swedish secure facilities are operated by staff without uniforms and offer recreational, educational and other activities, researchers still found that indefinite detention posed a “huge threat” to detainees’ “health and wellbeing.” Recently, non-governmental organizations (NGOs) filed a civil rights complaint asking the U.S. Department of Homeland Security (DHS) to investigate several cases of psychological trauma within family detention. In short, the evidence suggests that while conditions of detention must be improved, improving detention conditions alone is not enough to prevent harm to asylum seekers.</p>
<p><b>Detention Impedes Access to Legal Assistance</b></p>
<p>The U.S. government does not provide a lawyer to those seeking asylum. Moreover, detention makes it unlikely that asylum seekers can afford or otherwise secure a lawyer. Many detention centers are located in remote locations, far from <i>pro bono </i>immigration lawyers. Some have restrictive access policies that inhibit effective <i>pro bono </i>representation. Detention also makes it difficult to collect evidence, especially without a lawyer.<sup> </sup>&nbsp;</p>
<p>Yet, representation is crucial: studies show that a lawyer makes a real difference in whether a person will succeed in his or her asylum case. In a 2007 national study, 45.6 percent of represented asylum seekers in formal removal proceedings were successful, compared to 16.3 percent of unrepresented asylum seekers. Similarly, in New York, 84 percent of represented individuals who brought persecution-based claims in immigration court were successful, compared to 21 percent of unrepresented individuals who brought persecution-based claims.</p>
<p>Such results are not surprising. A lawyer can play a key role in helping the asylum seeker navigate legal and procedural complexities, collecting evidence, and advocating for him or her to decision makers. Many asylum seekers are afraid to talk to U.S. government officials, which inhibits their already-limited ability to advocate for themselves. If the asylum officer determines that an asylum seeker fears return, he or she must still negotiate trial-like removal proceedings against a government lawyer. Often the asylum seeker has little education or ability to speak or understand English and is without friends or family to help prepare her claims. Judges review asylum seekers’ statements for exacting consistency and may deny relief based on an inconsistency. &nbsp;</p>
<p><b>Detention Causes Abandonment of Asylum Claims</b></p>
<p>Detention without legal assistance also leads some to abandon their asylum applications despite having a credible fear of persecution or torture. In a major study of asylum seekers in expedited removal, the U.S. Commission on International Religious Freedom (USCIRF) interviewed 45 asylum seekers who abandoned their asylum claims while in detention and found that a “substantial number reported that the conditions of their detention influenced their decision to withdraw their application for admission.” The same study found that over a five-year period, detained credible fear claimants withdrew their asylum claims in immigration court at more than double the rate of non-detained or released claimants (13 percent versus five percent).</p>
<p>Additionally, in FY 2014, USCIS “closed” a much higher number of applications due to withdrawal or abandonment in reinstatement of removal proceedings (46 percent) than in expedited removal proceedings (10 percent). Although USCIS did not report its reasons for closing, applicants in reinstatement of removal proceedings have been detained much longer on average pending USCIS’ decision.&nbsp;</p>
<h2 style="font-family: Arial, Helvetica, sans-serif;"><b>The Government Should Take Steps to Reduce the Detention of Asylum Seekers and Increase Access to Counsel</b></h2>
<p>Taken together, the available research suggests that if the U.S. government treats asylum seekers fairly and humanely, they will likely appear for proceedings. Particularly given the serious adverse effects of detention on asylum seekers, immediate steps should be taken to reduce detention and ensure access to legal assistance. The Center for Migration Studies and U.S. Conference of Catholic Bishops have provided detailed recommendations to implement these goals, with a particular focus on asylum seekers. The immigration reform bill that passed the Senate in 2013 also contained several positive steps towards these goals.</p>
<p>NGOs have uniformly recommended that the practice of detaining families be ended. Recently, DHS Secretary Jeh Johnson announced the agency’s intention to shorten detention for initial processing for families, and ICE subsequently released some mothers and children who had been determined to have a credible fear of returning to their countries. Both are positive first steps.</p>
<p>Generally, release should be the norm, not detention. ICE can and should expand its use of release on recognizance, bond, and parole, with alternatives to detention only provided to those needing it to appear for proceedings. Notably, ICE’s use of alternatives to detention—generally, supervision, tracking, and case management—has been limited compared to ICE’s use of detention. ICE’s Intensive Supervision Appearance Program (ISAP), which is managed by a for-profit contractor, supervised 40,864 noncitizens in FY 2013, compared to 440,557 noncitizens that ICE detained. ICE sometimes uses ISAP for asylum seekers initially placed in expedited removal who have been screened and found to have a credible fear. Specific statistics on asylum seekers enrolled in ISAP are unavailable, however.</p>
<p>The level of restriction placed on a person in ISAP varies. In FY 2013, ISAP placed GPS (i.e., electronic tracking bracelets or “ankle bracelets”) on 48 percent of the noncitizens in its “full-service” program, while it subjected the remaining 52 percent only to telephonic check-ins. Recent reports, however, indicate that ICE is increasingly using ankle bracelets on asylum seekers. Yet ankle bracelets are intrusive, stigmatizing, and in some cases cause retraumatization and often are unnecessary. Given that asylum seekers are predisposed to comply with their legal proceedings, this form of intensive supervision is rarely needed. As one mother recently forced to wear an ankle bracelet said, “Where do they think I’m going to flee to? I have nowhere to go.”</p>
<p>ICE also has intermittently engaged NGOs to facilitate community supervision pilot programs—i.e., case management and assistance services provided by an NGO, rather than a for-profit entity such as ICE’s current contractor. In February 2015, ICE announced its intention to fund community-based case management services for families in five major metropolitan areas. This is a positive step, particularly considering the concerns that for-profit detention management has raised. &nbsp;</p>
<p>Reducing unnecessary detention not only would minimize human costs, but would reduce the financial burden of detention as well. ICE’s ATD programs cost $10.55 per day, as opposed to detention, which costs $158 per day. Yet the Obama administration requested only $122.5 million for ATDs in FY 2016, as part of a total detention budget of $2.4 billion. The $435 million requested for family detention alone dwarfs the requested ATD budget. One study suggested that if the United States used ATDs for all immigrants in proceedings not convicted of serious crimes, the government could save over $1.4 billion per year. Other studies suggest that the provision of counsel would additionally reduce detention costs.</p>
<p>Finally, with respect to legal counsel, the Departments of Justice and Health and Human Services have instituted pilot programs to fund lawyers for unaccompanied children. The Administration also requested $50 million in FY 2016 to fund additional lawyers for unaccompanied children. Extending these pilot programs to adult asylum seekers, and ultimately to all immigrants in proceedings, are important next steps to help ensure both compliance with the legal process and that individuals are afforded a fair opportunity to seek protection in the United States.</p>
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<p>Published On: <strong><span class="date-display-single">Wed, Jul 22, 2015</span> </strong>| <a href="/sites/default/files/docs/a_humane_approach_can_work_the_effectiveness_of_alternatives_to_detention_for_asylum_seekers_final.pdf" target="_blank">Download File</a></p>Special ReportsPolicyWed, 22 Jul 2015 18:17:23 +0000aic_admin3572 at http://www.immigrationpolicy.orgThe Criminalization of Immigration in the United Stateshttp://www.immigrationpolicy.org/special-reports/criminalization-immigration-united-states
<p><p><span style="line-height: 1.5;">For more than a century, innumerable studies have confirmed two simple yet powerful truths about the relationship between immigration and crime: immigrants are less likely to commit serious crimes or be behind bars than the native-born, and high rates of immigration are associated with lower rates of violent crime and property crime. This holds true for both legal immigrants and the unauthorized, regardless of their country of origin or level of education. In other words, the overwhelming majority of immigrants are not “criminals” by any commonly accepted definition of the term. For this reason, harsh immigration policies are not effective in fighting crime.</span></p>
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<p style="text-align: center;"><a href="http://immigrationpolicy.org/sites/default/files/docs/the_criminalization_of_immigration_in_the_united_states_final.pdf"><img src="/sites/default/files/the_criminalization_of_immigration_in_the_united_states_thumbnail.png" width="150" height="194" style="margin: 0px;" /></a></p>
<p style="font-family: Arial, Helvetica, sans-serif; line-height: 18px;"><span style="font-family: Arial, Helvetica, sans-serif; line-height: 1.5; text-align: right;">&nbsp; By&nbsp;</span><b style="font-family: inherit; line-height: 1.5; text-align: right;"><a href="http://immigrationpolicy.org/ipc-staff#walter">Walter A. Ewing, Ph.D.</a>&nbsp; &nbsp;<br /></b><b style="font-family: inherit; line-height: 1.5; text-align: right;"><b style="font-family: inherit; line-height: 1.5; text-align: right;">&nbsp; <a href="http://immigrationpolicy.org/daniel-e-mart%C3%ADnez-phd">Daniel E. Martínez, Ph.D.</a> &nbsp;&nbsp;<br /></b></b><b style="font-family: inherit; line-height: 1.5; text-align: right;">&nbsp;<a href="http://www.immigrationpolicy.org/rub%C3%A9n-rumbaut-phd">Rubén G. Rumbaut, Ph.D.</a> &nbsp;&nbsp;</b></p>
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<p>Unfortunately, immigration policy is frequently shaped more by fear and stereotype than by empirical evidence. As a result, immigrants have the stigma of “criminality” ascribed to them by an ever-evolving assortment of laws and immigration-enforcement mechanisms. Put differently, immigrants are being defined more and more as threats. Whole new classes of “felonies” have been created which apply only to immigrants, deportation has become a punishment for even minor offenses, and policies aimed at trying to end unauthorized immigration have been made more punitive rather than more rational and practical. In short, immigrants themselves are being criminalized.&nbsp;</p>
<h4></h4>
<h4><b>Immigrants are <i>Less</i> Likely to be Criminals Than the Native-Born</b></h4>
<p><b>Higher Immigration is Associated with Lower Crime Rates</b></p>
<ul>
<li>Between 1990 and 2013, the foreign-born share of the U.S. population grew from 7.9 percent to 13.1 percent and the number of unauthorized immigrants more than tripled from 3.5 million to 11.2 million.</li>
<li>During the same period, FBI data indicate that the violent crime rate declined 48 percent—which included falling rates of aggravated assault, robbery, rape, and murder. Likewise, the property crime rate fell 41 percent, including declining rates of motor vehicle theft, larceny/robbery, and burglary.<i style="font-family: inherit; line-height: 1.5;">&nbsp;</i></li>
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<p><b>Immigrants are Less Likely than the Native-Born to Be Behind Bars<span style="line-height: 1.5;">&nbsp;</span></b></p>
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<li>According to an original analysis of data from the 2010 American Community Survey (ACS) conducted by the authors of this report, roughly 1.6 percent of immigrant males age 18-39 are incarcerated, compared to 3.3 percent of the native-born. This disparity in incarceration rates has existed for decades, as evidenced by data from the 1980, 1990, and 2000 decennial censuses. In each of those years, the incarceration rates of the native-born were anywhere from two to five times higher than that of immigrants.</li>
<li>The 2010 Census data reveals that incarceration rates among the young, less-educated Mexican, Salvadoran, and Guatemalan men who make up the bulk of the unauthorized population are significantly lower than the incarceration rate among native-born young men without a high-school diploma. In 2010, less-educated native-born men age 18-39 had an incarceration rate of 10.7 percent—more than triple the 2.8 percent rate among foreign-born Mexican men, and five times greater than the 1.7 percent rate among foreign-born Salvadoran and Guatemalan men.</li>
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<p><b>Immigrants are Less Likely Than the Native-Born to Engage in Criminal Behavior<span style="line-height: 1.5;">&nbsp;</span></b></p>
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<li>A variety of different studies using different methodologies have found that immigrants are less likely than the native-born to engage in either violent or nonviolent “antisocial” behaviors; that immigrants are less likely than the native-born to be repeat offenders among “high risk” adolescents; and that immigrant youth who were students in U.S. middle and high schools in the mid-1990s and are now young adults have among the lowest delinquency rates of all young people.<span style="line-height: 1.5;">&nbsp;</span></li>
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<h4><b>Criminalizing Immigration and Expanding the Apparatus of Enforcement</b></h4>
<p><a href="https://wfc2.wiredforchange.com/o/8531/p/salsa/donation/common/public/?donate_page_KEY=8412"><img src="/sites/default/files/crime_report_donate_button.png" width="210" height="106" style="float: left; margin-left: 4px; margin-right: 4px;" /></a>Despite the abundance of evidence that immigration is not linked to higher crime rates, and that immigrants are less likely to be criminals than the native-born, many U.S. policymakers succumb to their fears and prejudices about what they imagine immigrants to be. As a result, far too many immigration policies are drafted on the basis of stereotypes rather than substance. These laws are criminalizing an ever broadening swath of the immigrant population by applying a double standard when it comes to the consequences for criminal behavior. Immigrants who experience even the slightest brush with the criminal justice system, such as being convicted of a misdemeanor, can find themselves subject to detention for an undetermined period, after which they are expelled from the country and barred from returning. In other words, for years the government has been redefining what it means to be a “criminal alien,” using increasingly stringent definitions and standards of “criminality” that do not apply to U.S. citizens.</p>
<p>Of course, these increasingly punitive laws are only as effective as the immigration-enforcement apparatus designed to support them. And this apparatus has expanded dramatically over the past three decades. More and more immigrants have been ensnared by enforcement mechanisms new and old, from worksite raids to Secure Communities. Detained immigrants are then housed in a growing nationwide network of private, for-profit prisons before they are deported from the United States. In short, as U.S. immigration laws create more and more “criminal aliens,” the machinery of detention and deportation grows larger as well, casting a widening dragnet over the nation’s foreign-born population in search of anyone who might be deportable. With the technologically sophisticated enforcement systems in place today, being stopped by a police officer for driving a car with a broken tail light can culminate in a one-way trip out of the country if the driver long ago pled guilty to a misdemeanor that has since been defined as a deportable offense.</p>
<p>The scale of the federal government’s drive to criminalize immigration and expand the reach of the enforcement dragnet becomes very apparent when the proliferation of immigration laws, policies, and enforcement mechanisms is tracked over the past three decades. Two bills passed by Congress in 1996 stand as the most flagrant modern examples of laws which create a system of justice for non-U.S. citizens that is distinct from the system which applies to citizens. And, from old-fashioned worksite raids to the modern databases which are the heart of initiatives such as Secure Communities and the Criminal Alien Program (CAP), the government’s immigration-enforcement mechanisms continue to expand and reach deeper and deeper into the immigrant community. In the process, basic principles of fairness and equal treatment under the law are frequently left by the wayside.</p>
<h4><b>The “Great Expulsion”</b></h4>
<p>The United States is in the midst of a “great expulsion” of immigrants, both lawfully present and unauthorized, who tend to be non-violent and non-threatening and who often have deep roots in this country. This relentless campaign of deportation is frequently justified as a war against “illegality”—which is to say, against unauthorized immigrants. But that justification does not come close to explaining the banishment from the United States of lawful permanent residents who committed traffic offenses and who have U.S.-based families. Nor does it explain the lack of due-process rights accorded to so many of the immigrants ensnared in deportation proceedings. Likewise, the wave of deportations we are currently witnessing is often portrayed as a crime-fighting tool. But, as the findings of this report make clear, the majority of deportations carried out in the United States each year do not actually target “criminals” in any meaningful sense of the word.</p>
<h2 style="font-family: Arial, Helvetica, sans-serif;"><b>Introduction</b></h2>
<p>In November 2013, NPR reported that U.S. Immigration and Customs Enforcement (ICE) had been instructed by Congress since 2009 to fill 34,000 beds in detention facilities across the country with immigrant detainees every day. It was immediately apparent that this sort of inmate quota would never fly if applied to native-born prisoners. As the NPR story puts it: “Imagine your city council telling the police department how many people it had to keep in jail each night.” Clearly, such a concept has nothing to do with fighting crime or protecting the public. But when it comes to the detention (and deportation) of immigrants, very different standards of justice and reason are at work.</p>
<p>For more than a century, innumerable studies have confirmed two simple yet powerful truths about the relationship between immigration and crime: immigrants are <i>less</i> likely to commit serious crimes or be behind bars than the native-born, and high rates of immigration are associated with <i>lower</i> rates of violent crime and property crime.<sup> </sup>This holds true for both legal immigrants and the unauthorized, regardless of their country of origin or level of education. In other words, the overwhelming majority of immigrants are not “criminals” by any commonly accepted definition of the term. For this reason, harsh immigration policies are not effective in fighting crime.</p>
<p>Unfortunately, immigration policy is frequently shaped more by fear and stereotype than by empirical evidence, which is partly why immigrants are often treated like dangerous criminals by the U.S. immigration system. More precisely, immigrants have the stigma of “criminality” ascribed to them by an ever-evolving assortment of laws and immigration-enforcement mechanisms. From the Immigration Reform and Control Act of 1986 (IRCA) to Operation Streamline (launched in 2005), immigrants are being defined more and more as threats. Whole new classes of “felonies” have been created which apply only to immigrants, deportation has become a punishment for even minor offenses, and policies aimed at trying to end unauthorized immigration have been made more punitive rather than more rational and practical. Moreover, as a growing body of “crimmigration” law has reimagined noncitizens as criminals and security risks, immigration law enforcement has increasingly adopted the securitized approach of criminal law enforcement. In short, immigrants themselves are being criminalized. As prominent immigration scholar Douglas Massey has written with regard to the plight of unauthorized immigrants in particular, “not since the days of slavery have so many residents of the United States lacked the most basic social, economic, and human rights.”</p>
<p>This report tackles the criminalization of immigration from two angles. First, it documents the fact that immigration is not associated with “crime” as it is commonly understood. For more than two decades, rates of violent crime and property crime have fallen in the United States as the immigrant population (including the unauthorized population) has grown. Moreover, immigrants are less likely than the native-born to be behind bars or to engage in typically “criminal behaviors.” Second, the report describes the ways in which U.S. immigration laws and policies are re-defining the notion of “criminal” as it applies to immigrants, while also ramping up the enforcement programs designed to find anyone who might be deportable. More and more, a zero-tolerance policy has been applied by the federal government to immigrants who commit even the slightest offense or infraction. “Crimes” which might result in a fine or a suspended sentence for natives end up getting immigrants detained and deported. This represents a double standard of justice for immigrants in which the scale of the punishment (detention and deportation) far outweighs the severity of the crime (traffic offenses, for example). Unfortunately, this double standard has been the guiding principle behind a litany of immigration-enforcement laws and programs, such as the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), the 287(g) program, Secure Communities, and the “Consequence Delivery System” implemented by U.S. Customs and Border Protection (CBP) in 2011.</p>
<h2><b>Immigrants are <i>Less</i> Likely to be Criminals Than the Native-Born</b></h2>
<p>The evidence that immigrants tend <i>not</i> to be criminals is overwhelming. To begin with, there is an inverse relationship between crime and immigration. Crime rates in the United States have trended downward for many years at the same time that the number of immigrants has grown. Second, immigrants are <i>less</i> likely to be incarcerated than the native-born. And, third, immigrants are <i>less</i> likely than the native-born to engage in the criminal behaviors that tend to land one in prison. No matter how you look at the issue, the inescapable conclusion is that immigrants are, on average, less prone to criminality than the U.S. native-born population.</p>
<h4><b>Higher Immigration is Associated with Lower Crime Rates</b></h4>
<p>As the number of immigrants in the United States has risen in recent years, crime rates have fallen. Between 1990 and 2013, the foreign-born share of the U.S. population grew from 7.9 percent to 13.1 percent {Figure 1}<sup> </sup>and the number of unauthorized immigrants more than tripled from 3.5 million to 11.2 million {Figure 2}.&nbsp;During the same period, FBI data indicate that the violent crime rate declined 48 percent—which included falling rates of aggravated assault, robbery, rape, and murder {Figure 3}.<sup> </sup>Likewise, the property crime rate fell 41 percent, including declining rates of motor vehicle theft, larceny/robbery, and burglary {Figure 4}.<sup> </sup>This decline in crime rates in the face of high levels of new immigration has been a steady national trend, and has occurred in cities across the country.</p>
<p style="text-align: center;"><a href="http://immigrationpolicy.org/sites/default/files/figures_1-4.png"><img src="/sites/default/files/figures_1-4.png" width="600" height="419" /></a></p>
<p>The most thoroughly studied aspect of this phenomenon has been the drop in rates of violent crime since the early 1990s in cities that have long been “gateways” for immigrants entering the United States, such as Miami, Chicago, El Paso, San Antonio, and San Diego.<sup> </sup>However, the inverse relationship between immigration and crime is also apparent in “new” immigrant gateways, such as Austin, where rates of both violent crime and serious property crime have declined despite high levels of new immigration. Declining rates of property crime have also been documented in metropolitan areas across the country. Some scholars suggest that new immigrants may revitalize dilapidated urban areas, ultimately reducing violent crime rates.</p>
<p>In short, to quote sociologist Robert J. Sampson, “cities of concentrated immigration are some of the safest places around.” The reason for this is straightforward. Immigrants as a group tend to be highly motivated, goal-driven individuals who have little to gain by running afoul of the law. As law professor and public-policy expert Michael Tonry puts it: “First-generation economic immigrants are self-selected risk takers who leave their homes, families, and languages to move to a new country to improve their and their children’s lives. They have good reasons to work hard, defer gratifications, and stay out of trouble.” Sampson and colleagues also find that immigrant communities are insulated from crime because they tend to display “social cohesion among neighbors combined with their willingness to intervene on behalf of the common good.”</p>
<p>There is a sense of déjà vu in these modern-day findings. In the first three decades of the 20<sup>th</sup> century, during the last era of large-scale immigration, three government commissions studied the relationship between immigrants and crime and came to the same conclusion as contemporary researchers. The Industrial Commission of 1901, the [Dillingham] Immigration Commission of 1911, and the [Wickersham] National Commission on Law Observance and Enforcement of 1931 each set out to measure how immigration increases crime. But each found lower levels of criminality among immigrants than among their native-born counterparts.&nbsp;A century ago, the report of the Dillingham Commission concluded:<span style="line-height: 1.5;">&nbsp;</span></p>
<p style="padding-left: 30px;"><i>No satisfactory evidence has yet been produced to show that immigration has resulted in an increase in crime disproportionate to the increase in adult population. Such comparable statistics of crime and population as it has been possible to obtain indicate that immigrants are less prone to commit crime than are native Americans.</i></p>
<h4><b>Immigrants are Less Likely than the Native-Born to Be Behind Bars</b></h4>
<p>Another concrete indication that immigrants are less likely than the native-born to be criminals is the fact that relatively few prisoners in the United States are immigrants. According to an original analysis of data from the 2010 American Community Survey (ACS) conducted by the authors of this report, roughly 1.6 percent of immigrant males age 18-39 are incarcerated, compared to 3.3 percent of the native-born. This disparity in incarceration rates has existed for decades, as evidenced by data from the 1980, 1990, and 2000 decennial censuses {Figure 5}. In each of those years, the incarceration rates of the native-born were anywhere from two to five times higher than that of immigrants.<span style="line-height: 1.5;">&nbsp;</span></p>
<p style="text-align: center;"><span style="line-height: 1.5;"><img src="/sites/default/files/figure_5.png" width="600" height="382" /><br /></span></p>
<p>The pronounced difference between immigrants and the native-born in terms of incarceration rates also holds true in the case of those immigrants most likely to be unauthorized. The 2010 Census data reveals that incarceration rates among the young, less-educated Mexican, Salvadoran, and Guatemalan men who make up the bulk of the unauthorized population are significantly lower than the incarceration rate among native-born young men without a high-school diploma. In 2010, less-educated native-born men age 18-39 had an incarceration rate of 10.7 percent—more than triple the 2.8 percent rate among foreign-born Mexican men, and five times greater than the 1.7 percent rate among foreign-born Salvadoran and Guatemalan men {Figure 6}.</p>
<p style="text-align: center;"><img src="/sites/default/files/figure_6_final.png" width="500" height="385" /></p>
<p>Research also indicates that such statistics are not simply the product of an effective immigration-enforcement system that removes immigrants from the country rather than holding them in U.S. prisons. According to a study by economists Kristin Butcher and Anne Morrison Piehl, the “evidence suggests that deportation and deterrence of immigrants’ crime commission from the threat of deportation are not driving the results. Rather, immigrants appear to be self-selected to have low criminal propensities and this has increased over time.”<sup> </sup>The study begins by using data from the 1980, 1990, and 2000 Censuses to demonstrate that immigrants have had lower incarceration rates than the native-born for quite some time, and that this effect has been growing more pronounced with each passing decade.<sup> </sup>But the study then goes on to answer the question of whether these decreasing incarceration rates are the result of harsh immigration policies enacted in the 1990s, either because more immigrants were deported or because more were deterred from criminal behavior because of the threat of deportation. The answer to this question proved to be “no.”<span style="line-height: 1.5;">&nbsp;</span></p>
<p>Nevertheless, it is clear from the ACS statistics that the incarceration rates for immigrant men rose between 2000 and 2010 (although they remained much lower than for native-born men). However, this is likely the product of changes in how immigration laws are enforced, not an indication of some immigrant predisposition towards “criminality” in the commonly understood sense of the word. The most probable explanation for the increase is that many more immigrant men were incarcerated for immigration-related offenses during the first decade of the 21<sup>st</sup> century as Congress redefined more and more immigration offenses as criminal (such as unauthorized entry or re-entry into the country),&nbsp;thus triggering criminal incarceration before deportation.<span style="line-height: 1.5;">&nbsp;</span></p>
<p>These same factors also explain why immigrants are <i>over</i> represented in the federal prison system: while some may be there for committing a serious criminal offense, a great many more may be there because of an immigration violation. Moreover, it is important to keep in mind that the characteristics of the federal prison population do not necessarily speak to the U.S. prison population as a whole because the overwhelming majority of prisoners are not in federal prisons. According to data from the U.S. Bureau of Justice Statistics, federal inmates accounted for only 9 percent of all prisoners in 2010. Well over half (58 percent) were incarcerated in state prisons and a third (33 percent) in local jails. So, when anti-immigrant activists and politicians trumpet the out-of-context statistic that one-quarter of the inmates in federal prisons are foreign-born, that figure should not be taken at face value.<span style="line-height: 1.5;">&nbsp;</span></p>
<p>Although there is no reliable source of data on immigrants incarcerated in state prisons and local jails, the U.S. Government Accountability Office (GAO) sought to overcome this limitation in a 2011 study. Not only did the study examine immigrants in federal prison during the Fiscal Year (FY) 2005-2010 period, but also non-federal immigrant prisoners for whom state and local governments had sought federal reimbursement of some incarceration costs through the U.S. Department of Justice’s State Criminal Alien Assistance Program (SCAAP) during the FY 2003-2009 period. The GAO found that, among the immigrant prisoners in its sample, 65 percent had been arrested at least once for (although not necessarily convicted of) an immigration violation, 48 percent for a drug offense, and 39 percent for traffic violations—all of which are generally non-violent acts. In comparison, 8 percent had been arrested at least once for homicide and 9 percent for robbery. The GAO also analyzed data from the U.S. Sentencing Commission and found that, in FY 2009, the “federal primary conviction” for 68 percent of offenders who were immigrants was an immigration-related violation—not a violent offense or any sort of crime which could be construed as a threat to public safety.<span style="line-height: 1.5;">&nbsp;</span></p>
<h4><b>Immigrants are Less Likely Than the Native-Born to Engage in Criminal Behavior</b></h4>
<p>The available evidence indicates that immigrants are not only less likely to end up behind bars than the native-born, but that immigrants are also less likely to commit criminal acts to begin with. For instance, a 2014 study found that “immigrants to the US are less likely to engage in violent or nonviolent antisocial behaviors than native-born Americans. Notably, native-born Americans were approximately four times more likely to report violent behavior than Asian and African immigrants and three times more likely than immigrants from Latin America.” The study analyzed data from the National Epidemiologic Survey on Alcohol and Related Conditions (NESARC) to determine how often natives and immigrants engage in a wide range of violent and nonviolent “antisocial behaviors,” from hurting another person on purpose and using a weapon during a fight to shoplifting and lying.</p>
<p>In a related vein, another 2014 study tracked 1,354 “high risk” adolescents over the course of seven years and found that the immigrants in the sample were less likely than the native-born to be repeat offenders. In the words of the authors, immigrants “appear to be on a path toward desistance much more quickly than their peers.” All of the adolescents in question had been convicted of a serious offense (usually a felony) in either a juvenile or adult court in Maricopa County, Arizona, or Philadelphia County, Pennsylvania. The study sought to determine who became a “persistent offender” and who did not.</p>
<p>A 2010 study yielded similar findings based on data from the National Longitudinal Study of Adolescent Health (Add Health). Add Health offers a “national, longitudinal account of delinquency by gender, race/ethnicity, and immigrant group from the onset of adolescence (ages 11-12) to the transition into adulthood (ages 25-26).” The study found that “immigrant youth who enrolled in U.S. middle and high schools in the mid-1990s and who are young adults today had among the lowest delinquency rates of all youth.” The authors conclude that the national-level data gathered by Add Health “debunk(s) the myth of immigrant criminality. Fears that immigration will lead to an escalation of crime and delinquency are unfounded.”</p>
<h2><b>Criminalizing Immigration and Expanding the Apparatus of Enforcement</b></h2>
<p>Despite the abundance of evidence that immigration is not linked to higher crime rates, and that immigrants are less likely to be criminals than the native-born, many U.S. policymakers succumb to their fears and prejudices about what they imagine immigrants to be. As a result, far too many immigration policies are drafted on the basis of stereotypes rather than substance. These laws are criminalizing an ever broadening swath of the immigrant population by applying a double standard when it comes to the consequences for criminal behavior. Immigrants who experience even the slightest brush with the criminal justice system, such as being convicted of a misdemeanor, can find themselves subject to detention for an undetermined period, after which they are expelled from the country and barred from returning. This reality is at the core of what law professor Juliet Stumpf calls “crimmigration”—the “criminalization of immigration law.” Stumpf argues that “as criminal sanctions for immigration-related conduct and criminal grounds for removal from the United States continue to expand, aliens become synonymous with criminals." In other words, for years the government has been redefining what it means to be a “criminal alien,” using increasingly stringent definitions and standards of “criminality” that do not apply to U.S. citizens.</p>
<p>Of course, these increasingly punitive laws are only as effective as the immigration-enforcement apparatus designed to support them. And this apparatus has expanded dramatically over the past three decades. More and more immigrants have been ensnared by enforcement mechanisms new and old, from worksite raids to Secure Communities. Detained immigrants are then housed in a growing nationwide network of private, for-profit prisons before they are deported from the United States. In short, as U.S. immigration laws create more and more “criminal aliens,” the machinery of detention and deportation grows larger as well, casting a widening dragnet over the nation’s foreign-born population in search of anyone who might be deportable. With the technologically sophisticated enforcement systems in place today, being stopped by a police officer for driving a car with a broken tail light can culminate in a one-way trip out of the country if the driver long ago pled guilty to a misdemeanor that has since been defined as a deportable offense.</p>
<h4><b>Misleading Language in the “Official” Deportation Statistics</b></h4>
<p>The definition of “criminal alien” used by the federal government is clearly inconsistent with the general public’s understanding of serious crime. The term represents a terminological sleight-of-hand used to justify a punitive approach to immigration enforcement that is based on incarceration and deportation. An important part of the government’s attempt to redefine what it means to be a “criminal alien,” with all the social and legal implications this label carries, becomes clear upon closer consideration of the data on enforcement actions that is released by the U.S. Department of Homeland Security (DHS). According to DHS, 438,421 foreign nationals were removed from the United States in FY 2013. Among those removed, roughly 45 percent (198,394) were classified as “known criminal aliens.” (Along these lines, the director of ICE testified before Congress that “eighty-five percent of individuals removed or returned from the interior were previously convicted of a criminal offense”).</p>
<p>However, a more detailed examination of the data clearly illustrates that the majority of “criminal aliens” are in fact <i>not</i> being removed for what most Americans perceive to be serious crime, such as the FBI’s eight Index Crimes, which consist of “Part I” offenses (homicide, assault, forcible rape, and robbery) and “Part II” offenses (larceny, burglary, motor vehicle theft and arson). In fact, DHS’s FY 2013 enforcement actions indicate that serious crimes such as “Assault,” “Robbery,” “Burglary,” and “Sexual Assault” collectively make up only one-fifth of the crime categories for which “criminal aliens” were removed. Nearly one-third (31.3 percent) of “criminal aliens” were removed for “Immigration” offenses (i.e., illegal entry or reentry into the United States), followed by 15.4 percent for “Dangerous Drugs” (which includes possession of marijuana), and 15 percent for “Criminal Traffic Offenses” (including both Driving Under the Influence (DUI) and “hit and run”). Also noteworthy are an additional 14.2 percent of “criminal aliens” who were removed for “All other categories, including unknown” {Figure 7}.</p>
<p style="text-align: center;"><img src="/sites/default/files/figure_7.png" width="500" height="373" /></p>
<h4><b>Immigrant Incarceration and the Rise of the Private Prison Industry</b></h4>
<p>The criminalization of immigration involves much more than the manipulation of official deportation statistics. It is also driven by a massive expansion in the infrastructure for the detention of immigrants who fit one or more of the growing list of offenses that qualify as “criminal” for immigration purposes. The immigrant-detention industry began to expand in earnest during the early 1980s following the creation of the Krome Avenue Detention Center in Miami to detain Mariel refugees from Cuba. Moreover, at the same time the immigration detention system has grown, the nation’s prison system has become increasingly privatized. The end result is the federal government’s reliance upon private prison corporations, such as Corrections Corporation of America (CCA) and The GEO Group, to handle the burgeoning inflows of “criminal aliens.”</p>
<p>As the immigrant-detention industry grew, so did the redefinition of “immigrants” as an inherently dangerous group of people. This can be attributed in part to the fact that private prison companies work actively to shape the federal and state laws governing corrections and law-enforcement. The companies make sizeable campaign contributions to politicians, and lobby Congress and state legislatures on bills that affect their interests. These companies also belong to organizations such as the American Legislative Exchange Council (ALEC), which champions free markets, limited government, and public-private partnerships that bring together federal and state legislators with members of the private sector. These partnerships can wield considerable power. For instance, there are indications that ALEC and CCA may have played a major role in drafting the legislation that would become Arizona’s infamous anti-immigrant law, SB 1070. This scenario represents a conflict of interest in which a company that has a vested financial interest in the incarceration of as many people as possible is influencing legislation that will increase the flow of prisoners into that company’s prisons. One can only wonder if this business ethic is behind the fact that ICE is now required by law “to maintain an average daily population of 34,000 detainees.”</p>
<h4><b>A Chronology of Criminalization and the Expansion of Immigration Enforcement</b></h4>
<p>The scale of the federal government’s drive to criminalize immigration and expand the reach of the enforcement dragnet becomes very apparent when the proliferation of immigration laws, policies, and enforcement mechanisms is tracked over the past three decades. The 1996 laws stand as the most flagrant modern examples of laws which create a system of justice for non-U.S. citizens that is distinct from the system which applies to citizens. And, from old-fashioned worksite raids to the modern databases which are the heart of initiatives such as Secure Communities and the Criminal Alien Program (CAP), the government’s immigration-enforcement mechanisms continue to expand and reach deeper and deeper into the immigrant community. In the process, basic principles of fairness and equal treatment under the law are frequently left by the wayside.</p>
<p><b>Worksite Immigration Raids</b></p>
<p>For decades, worksite raids of businesses employing unauthorized immigrants were a mainstay of immigration enforcement in the United States. In recent times, their economic and social destructiveness are perhaps best exemplified by the case of Postville, Iowa. On May 12, 2008, 389 workers were arrested during an immigration raid at Postville’s Agriprocessors, Inc. meatpacking plant. The consequences for the community and the local economy have been dire. According to the authors of <i>Postville U.S.A.</i>, one year after the raid, Postville “lost 40% of its pre-raid population, the economy was in shambles, the city government teetered on the brink of financial collapse, and the future of the town’s major employer grew increasingly doubtful with time.” Long after the Agriprocessors raid, Postville was still what its leaders described as “a human and economic disaster area.” The population loss meant steep losses for Postville in taxes and utility revenue. Local businesses closed, rental units remained empty, and the town couldn’t pay its bills. According to the book’s authors: “Attempts to come up with simple black-and-white solutions, such as arresting undocumented workers or closing down the companies that employ them, often causes a host of far more complex situations that do little to address any of the real concerns expressed by either side in the immigration debate.”</p>
<p>The use of worksite raids as an enforcement mechanism has waned in recent years, although unauthorized workers are occasionally still swept up in such raids. According to ICE, in FY 2012, the agency made “520 criminal arrests tied to worksite enforcement investigations. Of the individuals criminally arrested, 240 were owners, managers, supervisors or human resources employees.” The remaining were workers who faced charges “such as aggravated identity theft and Social Security fraud.”</p>
<p><b>Criminal Alien Program</b></p>
<p>The Immigration Reform and Control Act of 1986 (IRCA) is perhaps best known for providing an avenue to legal status for most unauthorized immigrants in the country at that time. However, IRCA also spurred the creation of new immigration-enforcement programs targeting noncitizens with criminal convictions. Among those programs were two that eventually became ICE’s Criminal Alien Program (CAP) —a moniker which actually encompasses a number of different systems designed to identify, detain, and begin removal proceedings against deportable immigrants within federal, state, and local prisons and jails. CAP is currently active in all state and federal prisons, as well as more than 300 local jails throughout the country. It is one of several so-called “jail status check” programs intended to screen individuals in federal, state, or local prisons and jails for removability. CAP is by far the oldest and largest such interface between the criminal justice system and federal immigration authorities. CAP also encompasses other activities, including the investigation and arrest of some noncitizens who are not detained.</p>
<p>Regardless of its official intent, in practice CAP encourages local police to engage in ethnic profiling. In particular, police are motivated to arrest as many Latinos as possible in order to snare as many deportable immigrants as possible. For instance, one study found:</p>
<p style="padding-left: 30px;"><i>compelling evidence that the Criminal Alien Program tacitly encourages local police to arrest Hispanics for petty offenses. These arrests represent one part of an implicit, but relatively clear logic: the higher the number of Hispanic arrests, the larger the pool of Hispanic detainees; the larger the pool of detainees, the more illegal immigrants that can be purged from the city via the CAP screening system.</i></p>
<p><b>The War on Drugs</b></p>
<p>Starting in the mid-1980s, the expansion of the infrastructure for detention in the United States was based not only on an escalating crackdown on immigrants, but was also a central component of the “war on drugs.” While IRCA and the Immigration Act of 1990 specifically expanded immigration detention, prisons were also filled with offenders—immigrant and native-born alike—on the basis of the Anti-Drug Abuse Act of 1988 (which created the concept of the “aggravated felony”), the Crime Control Act of 1990, and the Violent Crime Control and Law Enforcement Act of 1994, among other laws. In fact, the battles against illegal drugs and “illegal aliens” were frequently linked to each other in the political rhetoric of the time. The result was a growing number of prisons and a growing number of offenders to fill them.</p>
<p><b>1996 Laws</b></p>
<p>The year 1996 was pivotal in terms of the criminalization of immigration. The Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) and the Antiterrorism and Effective Death Penalty Act (AEDPA) transformed immigration law in two profound ways. First, the laws mandated the detention and deportation of noncitizens (lawful permanent residents and unauthorized immigrants alike) who had been convicted of an “aggravated felony,” including individuals who may have pled guilty to minor charges to avoid jail time by opting for probation. Second, the laws expanded the list of offenses that qualify as “aggravated felonies” for immigration purposes, and applied this new standard retroactively to offenses committed years before the laws were enacted.</p>
<p>A classic example of just how unfair these laws can be is the case of Mary Anne Gehris, who was born in Germany in 1965 but adopted by U.S.-citizen parents when she was two years old and taken to live in the United States. In 1988, she got into a fight with another woman over a boyfriend, pulled that woman’s hair, and ended up pleading guilty to misdemeanor assault. In 1999, she applied for U.S. citizenship and found herself in deportation proceedings instead because the 1996 immigration reforms defined her 1988 misdemeanor assault conviction as a “crime of violence.” Fortunately, the Georgia Board of Pardons intervened on Ms. Gehris’s behalf and pardoned her, thereby sparing her from deportation and allowing her to become a U.S. citizen. But many other non-citizens have not been so lucky and have found themselves deported to countries they have not seen since they were children.</p>
<p><b>287(g) Program</b></p>
<p>Created by IIRIRA in 1996, 287(g)—which refers to the relevant section of the Immigration and Nationality Act (INA)—allows DHS to deputize select state and local law-enforcement officers to perform the functions of federal immigration agents. Like employees of ICE, so-called “287(g) officers” have access to federal immigration databases, may interrogate and arrest noncitizens believed to have violated federal immigration laws, and may lodge “detainers” against alleged noncitizens held in state or local custody. The program has attracted a wide range of critics since the first 287(g) agreement was signed more than 10 years ago. Among other concerns, opponents say the program lacks proper federal oversight, diverts resources from the investigation of local crimes, and results in profiling of Latino residents—as was documented following the entry into a 287(g) agreement with Sheriff Joe Arpaio of Maricopa County, Arizona. Following the nationwide expansion of the Secure Communities program, which has its own drawbacks but is operated exclusively by federal authorities, critics have asked whether the 287(g) program continues to offer any law-enforcement benefit. In its budget justification for FY 2013, DHS sought $17 million <i>less</i> in funding for the 287(g) program, and said that in light of the expansion of Secure Communities, “it will no longer be necessary to maintain the more costly and less effective 287(g) program.”</p>
<p>While 287(g) may be on the way out, it is important to keep in mind that state governments have repeatedly sought to enlist their police forces in immigration enforcement without the cooperation or permission of federal authorities. Arizona’s SB 1070 and Alabama’s HB 56 are the most notorious examples of sweeping anti-immigrant laws that sought to turn police officers into immigration-enforcement agents. Although major provisions of these laws were struck down in the courts as a preemption of federal immigration-enforcement powers, other onerous provisions have survived. In Arizona, for instance, the U.S. Supreme Court upheld the provision of SB 1070 that permits police to conduct immigration status checks during law-enforcement stops.&nbsp;Even if 287(g) programs eventually cease to exist, anti-immigrant laws introduced in state houses will remain a very real equivalent.</p>
<p><b>September 11</b></p>
<p>The U.S. government responded to the attacks of September 11, 2001, in the same way it has in so many other times of national crisis: by using “national security” as a justification for incarcerating and deporting greater numbers of immigrants. “Foreigners” were broadly defined as potential threats and were detained on immigration-related charges that do not require the same standard of proof that is necessary in a criminal investigation. Although federal authorities first targeted Arabs, Muslims, and South Asians in the aftermath of 9/11, the “war on terror” has had an impact on all immigrants regardless of ethnicity or legal status—including Latin American immigrants, particularly Mexicans, who comprise the majority of immigration detainees. Post-9/11 policies not only increased funding for various immigration-enforcement functions as part of the broader effort to enhance national security, but fostered an “us or them” mentality in which “they” are the foreign-born.</p>
<p>More precisely, the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA PATRIOT) Act of 2001, the Homeland Security Act of 2002, and the Enhanced Border Security and Visa Entry Reform Act of 2002 collectively “illustrate the accelerating criminalization of the immigration system.” This intersection of criminal and immigration law has led to a notable increase in deportations. As Stumpf notes, in the period “between 1908 and 1980, there were approximately 56,000 immigrants deported based on criminal convictions. In 2004 alone, there were more than 88,000 such deportations.” While immigration law had been used by U.S. authorities to remove non-citizens who came into contact with the criminal justice system in the pre-9/11 era, the relationship between these two systems of law intensified after 9/11. As law professor Teresa A. Miller notes, “After the attacks, zero-tolerance enforcement of immigration laws was extended to immigrants who had not passed through the criminal justice system, such as asylum seekers and undocumented immigrants.” The PATRIOT Act in particular allowed federal officers to apprehend and detain “non-citizens on immigration grounds without legal review and without public disclosure of the specific charge for a period of seven days, or for a maximum of six months if the case is deemed a national security risk.”</p>
<p>The “war on terror” thus had immediate implications for foreign-born individuals residing in the United States. As Miller states: “In January of 2002, Deputy Attorney General Larry Thompson announced a new initiative to ‘locate, apprehend, interview, and deport’ approximately 314,000 noncitizens who had been ordered deported, but had failed to comply with their deportation orders.” This initiative led to the arrest of more than 1,100 Muslim and Arab men without formally charging them with a crime. However, the consequences of the PATRIOT Act extended beyond these individuals and into immigrant communities, ultimately being manifested through “racial profiling and scapegoating, mass detentions and mistreatment, and the government’s refusal to disclose information about those detained.”</p>
<p>A prime example of the enforcement-only mindset of DHS and its component agencies in the post-9/11 era is “Operation Endgame”—the name given to the “Office of Detention and</p>
<p>Removal Strategic Plan, 2003–2012,” which was released on June 27, 2003, by Anthony S. Tangeman, Director of ICE’s Office of Detention and Removal Operations (DRO). Tangeman succinctly explains the rationale underlying his department’s new strategic plan:</p>
<p style="padding-left: 30px;"><i>As the title implies, DRO provides the endgame to immigration enforcement and that is the removal of all removable aliens. This is also the essence of our mission statement and the ‘golden measure’ of our success. We must endeavor to maintain the integrity of the immigration process and protect our homeland by ensuring that every alien who is ordered removed, and can be, departs the United States as quickly as possible and as effectively as practicable. We must strive for 100% removal rate.</i></p>
<p>However, Tangeman’s assertions about how best to “protect our homeland” ring hollow given that the vast majority of immigrants aren’t criminals (let alone terrorists), and that even minor infractions can render an immigrant “deportable” under current law. Yet the Tangeman memo, and the strategic plan it introduces, treat all immigrants as potential security risks—a paranoid worldview that has become widespread not only throughout the federal government, but in many state and local governments as well.</p>
<p><b>Operation Streamline</b></p>
<p>The federal government’s detention-and-deportation machine is also being fed by Operation Streamline, a program begun in 2005 in the southwest of the country under which unauthorized border-crossers are prosecuted in group trials and convicted of illegal entry into the country—a misdemeanor. If they cross again, they may be convicted of an aggravated felony and face up to two years in prison. Although these offenses have been on the books since 1929, they are being applied under Operation Streamline more widely than they ever were before. Yet the structure of Operation Streamline—in which up to 80 immigrants are tried at a time, and each defendant has only a few minutes to speak to an attorney—practically guarantees the violation of basic legal and human rights.&nbsp;</p>
<p>In addition, Streamline—which currently operates in all but three southwestern Border Patrol Sectors—has fueled a surge in immigration prosecutions over the past decade, severely straining the capacities of courtrooms along the border and clogging the courts with petty immigration offenses. According to Justice Department data analyzed by the Transactional Records Access Clearinghouse (TRAC), immigration prosecutions “reached an all-time high” in FY 2013 with 97,384 (53,789 for “illegal entry” and 37,346 for “illegal re-entry”). This marks an increase of 367 percent over the number of prosecutions 10 years earlier. Between FY 2005-2012, a “total of 208,939 people were processed through Operation Streamline,” which represents 45 percent of the 463,051 immigration-related prosecutions in Southwest border districts during this time period. U.S. Sentencing Commission data analyzed by the Pew Research Center finds that the “Dramatic growth over the past two decades in the number of offenders sentenced in federal courts has been driven primarily by enforcement of a particular immigration offense—unlawful reentry into the United States.” Predictably, Operation Streamline has diverted resources away from drug and human smuggling prosecutions. All this means that massive amounts of time, money, and manpower are being wasted on the prosecution of non-violent immigrants who do not represent a threat to public safety or national security.<i style="font-family: inherit; line-height: 1.5;">&nbsp;</i></p>
<p><b>Secure Communities</b></p>
<p>Although the double standards inherent in immigration law have been applied to immigrants for more than a decade and a half, they took on new meaning starting in 2008 with the launch and dramatic expansion of Secure Communities. This was (or still is, depending on one’s perspective) a DHS program, eventually activated in all 3,181 jurisdictions across the United States,&nbsp;which used biometric data to screen for deportable immigrants as people were being booked into jails.&nbsp;Under Secure Communities, an arrestee’s fingerprints were run not only against criminal databases, but immigration databases as well. If there was an immigration “hit,” ICE could issue a “detainer” requesting that the jail hold the person in question until ICE could pick them up.</p>
<p>Not surprisingly, given the new classes of “criminals” created by IIRIRA, most of the immigrants scooped up by Secure Communities were non-violent and not a threat to anyone. In fact, one report found that in Los Angeles County, “the vast majority of those deported through Secure Communities have merely had contact with local law enforcement and have not committed serious crimes.” Moreover, as the program metastasized throughout every part of the country, more and more people were thrown into immigration detention prior to deportation, which led to mounting financial costs. In FY 2013, 306,622 immigrants convicted of crimes were removed from the United States after identification through Secure Communities.</p>
<p>More broadly, regardless of whether they were identified through Secure Communities or not, the overwhelming majority of people receiving ICE detainers while in the custody of local, state, and federal law-enforcement officials had no criminal record. For instance, among the nearly one million detainers issued by ICE during a 50-month period during FY 2008-2012, over 77 percent consisted of individuals who “had no criminal record—either at the time the detainer was issued or subsequently.” Records from this same time period illustrate that for “the remaining 22.6 percent that had a criminal record, only 8.6 percent of the charges were classified as a Level 1 offense” {Figure 8}.</p>
<p style="text-align: center;"><img src="/sites/default/files/figure_8.png" width="500" height="428" /></p>
<p>Secure Communities was not a practical or responsible approach to public safety. It undermined community policing by creating distrust of local law enforcement within immigrant communities, which in turn made community members less likely to report crimes or cooperate with local authorities in on-going investigations due to fear of deportation. This had negative consequences for public safety. Secure Communities, along with other programs of its kind, also led to the separation of U.S.-citizen children from their parents. These were issues that could not be fixed by simply altering the program. Further, one study found that “ICE’s failure to adhere to its own stated priorities is a feature rather than a reparable flaw of the program” and “has led to increased use of racial profiling in policing.”</p>
<p>The current status of Secure Communities is somewhat murky. In February 2013, ICE stated that it would transfer “full responsibility” for the day-to-day management of Secure Communities to CAP, and began to redirect Secure Communities funding towards CAP. But Homeland Security Secretary Jeh Johnson announced in a November 20, 2014, memo that, due to widespread opposition to the program by law-enforcement officers and elected officials, “the Secure Communities program, as we know it, will be discontinued.” It is to be replaced by the “Priority Enforcement Program” (PEP), under which ICE can “issue a request for detention” to state or local law-enforcement agencies if it can “specify that the person is subject to a final order of removal or there is other sufficient probable cause to find that the person is a removable alien.” It remains to be seen how substantively different PEP will be from Secure Communities.</p>
<p><b>CBP’s Consequence Delivery System</b></p>
<p>The systematic criminalization of unauthorized immigrants in particular has intensified along the U.S.-Mexico border. In 2011, CBP, in collaboration with ICE, rolled out a program described as the Consequence Delivery System (CDS). Rooted in the notion of specific deterrence, CDS is designed “to break the smuggling cycle and deter a subject from attempting further illegal entries or participating in a smuggling enterprise.” The program “guides management and agents through a process designed to uniquely evaluate each subject and identify the ideal consequences to deliver to impede and deter further illegal activity.” Possible “consequences” under this initiative include, but are not limited to, being processed through the Alien Transfer and Exit Program (commonly referred to a “lateral repatriation,” often resulting in people being sent to unfamiliar and dangerous Mexican border towns plagued with drug war violence), being repatriated to Mexico in the middle of the night, or being charged with “unauthorized entry” (a misdemeanor) or “unauthorized re-entry” (an aggravated felony), which commonly occurs through Operation Streamline. Not only has CDS contributed to the further criminalization of immigration, but it has also needlessly contributed to the increased vulnerability of the already vulnerable unauthorized population.</p>
<p><b>Executive Action</b></p>
<p>With Congress perennially deadlocked over comprehensive immigration reform legislation, the Obama administration eventually took matters into its own hands. On November 20 and 21, 2014, President Obama announced a series of “executive actions” that would grant a temporary reprieve from deportation, and work authorization, to as many as 5.3 million unauthorized immigrants (5.8 million remain ineligible). This would be accomplished through expansion of the already functioning 2012 Deferred Action for Childhood Arrivals (DACA) program, as well as the creation of a new deferred action program called Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA). DACA offers temporary relief from deportation (and temporary work authorization) to qualified young adults who were brought to the United States as children. DAPA would grant temporary relief from deportation, as well as temporary work authorization, to some unauthorized parents of U.S. citizens or lawful permanent residents. However, neither DAPA nor the expansion of DACA can get off the ground until the legal challenges to them are resolved in court. So it remains to be seen how the President’s “executive action” will impact the drive to deportation that still permeates the U.S. immigration system. Moreover, the rhetoric used by the Obama administration in justifying executive action—such as saying that immigration authorities will now target only “felons, not families” —fails to account for the fact that there are a great many “felons” who have committed only immigration offenses and pose a threat to no one.</p>
<h2><b>Conclusion</b></h2>
<p>There are many signs that the U.S. immigration-enforcement system has run amok. Deportations during the Obama Administration have exceeded the two-million mark. Families and communities have been and are being needlessly torn apart in the process. And each year, billions upon billions of dollars are spent on border and interior enforcement, while hundreds of migrants die in the deserts and mountains of the southwest trying to cross into the country from Mexico—sometimes while trying to reach their families in the United States. These are tragedies that could be prevented—if only Congress would choose to inject proportionality, discretion, and a little humanity back into the immigration system.</p>
<p>While lawmakers repeatedly justify their crackdown on immigrants as a means of fighting crime, the reality is that crime in the United States is not caused or even aggravated by immigrants, regardless of their legal status. This is hardly surprising since immigrants come to the United States to pursue economic and educational opportunities not available in their home countries and to build better lives for themselves and their families. As a result, they have little to gain and much to lose by breaking the law. Unauthorized immigrants in particular have even more reason to not run afoul of the law given the risk of deportation that their lack of legal status entails. But the terminological sleight-of-hand inherent in the government’s definition of “criminal alien” perpetuates and exacerbates the fallacy of a link between immigration and crime.</p>
<p>Public policies must be based on facts, not anecdotes or emotions. And the fact is that the vast majority of immigrants are <i>not</i> “criminals” in any meaningful sense of the word. The bulk of the immigration-enforcement apparatus in this country is not devoted to capturing the “worst of the worst” foreign-born criminals. Rather, as Secure Communities exemplifies all too well, the detention-and-deportation machine is designed primarily to track down and expel non-violent individuals, including legal residents of the United States who have worked and raised families here for many years. This brand of immigration policy is cruel, pointless, shortsighted, and counterproductive. And it is not an effective substitute for immigration reform which makes our immigration system responsive to the economic and social forces which drive migration in the first place.</p>
<p>The United States is in the midst of a “great expulsion” of immigrants, both lawfully present and unauthorized, who tend to be non-violent and non-threatening and who often have deep roots in this country. This relentless campaign of deportation is frequently justified as a war against “illegality”—which is to say, against unauthorized immigrants. But that justification does not come close to explaining the banishment from the United States of lawful permanent residents who committed traffic offenses and who have U.S.-based families. Nor does it explain the lack of due-process rights accorded to so many of the immigrants ensnared in deportation proceedings. Likewise, the wave of deportations we are currently witnessing is often portrayed as a crime-fighting tool. But, as the findings of this report make clear, the majority of deportations carried out in the United States each year do not actually target “criminals” in any meaningful sense of the word.</p>
<p>Policymakers who look at the entire foreign-born population of the United States through a law-enforcement lens are seeing things that aren’t really there. As renowned psychologist Abraham H. Maslow wrote many years ago, “it is tempting, if the only tool you have is a hammer, to treat everything as if it were a nail.” The blunt weapon that is the U.S. immigration-enforcement apparatus is being wielded against a widening swath of the immigrant community, regardless of their ties to this country, regardless of whether or not they are actually criminals. It is long past time for U.S. immigration policies to accurately reflect the diversity and complexity of immigration to this country, based not on a reflexive politics of fear and myth, but on sound analysis and empirical evidence.</p>
</p>
<p>Published On: <strong><span class="date-display-single">Wed, Jul 08, 2015</span> </strong>| <a href="/sites/default/files/docs/the_criminalization_of_immigration_in_the_united_states_final.pdf" target="_blank">Download File</a></p>Special ReportsImmigration and CrimePolicyWed, 08 Jul 2015 14:35:35 +0000aic_admin3564 at http://www.immigrationpolicy.orgA Guide to Children Arriving at the Border: Laws, Policies and Responseshttp://www.immigrationpolicy.org/special-reports/guide-children-arriving-border-laws-policies-and-responses
<p><p><span style="line-height: 1.5;">The American Immigration Council is updating this Guide which was first issued in summer 2014. It provides information about the tens of thousands of children—some travelling with their parents and others alone—who have fled their homes in Central America and arrived at our southern border. </span></p>
<!--break--><!--break--><p><a href="http://immigrationpolicy.org/sites/default/files/docs/a_guide_to_children_arriving_at_the_border_and_the_laws_and_policies_governing_our_response.pdf"><img src="/sites/default/files/a_guide_to_children_arriving_at_the_border_thumbnail.png" width="100" style="margin: 0px 4px; float: right;" /></a>This Guide seeks to explain the basics. Who are these children and why are they coming? What basic protections does the law afford them? What happens to the children once they are in U.S. custody? What have the U.S. and other governments done in response? What additional responses have advocates and legislators proposed? The answers to these questions are critical to assessing the U.S. government’s responses and understanding the ongoing debate about whether reforms to the immigration laws and policies involving children are needed.&nbsp;</p>
<p><span style="line-height: 1.5;"><br /></span></p>
<h3 style="font-family: Arial, Helvetica, sans-serif;">Background: Who are the children, why are they coming, and what obligations do we have?</h3>
<p><b>What does “unaccompanied children” mean?</b></p>
<p>Children who arrive in the United States alone or who are required to appear in immigration court on their own often are referred to as unaccompanied children or unaccompanied minors. “Unaccompanied alien child” (UAC) is a technical term defined by law as a child who “(A) has no lawful immigration stat­us in the United States; (B) has not attained 18 years of age; and (C) with respect to whom—(i) there is no parent or legal guardian in the United States; or (ii) no parent or legal guardian in the United States is available to provide care and physical custody.” Due to their vulnerability, these young migrants receive certain protections under U.S. law. The immigration laws do not define the term “accompanied” children, but children arriving in the United States with a parent or guardian are considered accompanied.&nbsp;</p>
<p><b style="font-family: Arial, Helvetica, sans-serif;">Where are these children and families coming from?</b></p>
<p>The vast majority of unaccompanied children and families arriving at the southwest border come from Mexico, Guatemala, Honduras, and El Salvador, although unaccompanied children may arrive from any country. Over the past few years, increasing numbers of children and families have been fleeing violence in Guatemala, Honduras, and El Salvador—a region of Central America known as the “Northern Triangle.” According to U.S. Customs and Border Protection (<a href="http://www.cbp.gov/newsroom/stats/southwest-border-unaccompanied-children">CBP</a>), a component of the Department of Homeland Security (DHS), between October 1, 2013 and September 30, 2014, CBP encountered 67,339 unaccompanied children. The largest number of children (27 percent of the total) came from Honduras, followed by Guatemala (25 percent), El Salvador (24 percent), and Mexico (23 percent). The number of unaccompanied children arriving at the southern border has decreased since its peak in the summer and fall of 2014. Between October 1, 2014 and April 30, 2015, CBP apprehended 3,514 unaccompanied minors from El Salvador, 6,607 from Guatemala, 1,977 from Honduras, and 6,519 from Mexico. This represents approximately a 45 percent decrease from the same time period the prior year. The apprehensions of “family units” (children with a parent or legal guardian) also declined. There were 16,997 family unit apprehensions from October 1, 2014 to April 30, 2015, a 35 percent decrease from 26,341 apprehensions during the same time frame the year before. As discussed below, this decrease in apprehensions likely is tied to increases in apprehensions in Mexico and increased security measures along Mexico’s southern border.</p>
<p align="center"><img src="/sites/default/files/a_guide_to_children_arriving_at_the_border_figure_1.png" width="600" height="412" /></p>
<p align="right">Source: <a href="http://www.cbp.gov/newsroom/stats/southwest-border-unaccompanied-children">CBP</a>.<br /> *FY 2015 through April 30, 2015.</p>
<p><b>Why are children and families leaving their home countries?</b></p>
<p>Researchers consistently cite increased Northern Triangle violence as the primary motivation for recent migration, while identifying additional causes including poverty and family reunification. A report by the <a href="http://acaps.org/en/news/other-situations-of-violence-in-the-northern-triangle-of-central-america/1">Assessment Capacities Project</a> (ACAPS), citing 2012 United Nations Office on Drugs and Crime (UNODC) data, highlighted that Honduras had a homicide rate of 90.4 per 100,000 people. El Salvador and Guatemala had homicide rates of 41.2 and 39.9, respectively. A 2014 analysis conducted by Tom Wong, a University of California-San Diego political science professor, took the UNDOC data and compared it to the data on unaccompanied children provided by CBP. Wong found a positive relationship between violence and the flow of children: “meaning that higher rates of homicide in countries such as Honduras, El Salvador, and Guatemala are related to greater numbers of children fleeing to the United States.”</p>
<p align="left">While a child may have multiple reasons for leaving his or her country, children from the Northern Triangle consistently cite gang or cartel violence as a primary motivation for fleeing. Research conducted in El Salvador on child migrants who were returned from Mexico found that 60 percent listed crime, gang threats, and insecurity as a reason for leaving. In a United Nations High Commissioner for Refugees (UNHCR) survey of 404 unaccompanied children from El Salvador, Guatemala, Honduras, and Mexico, 48 percent of the children “shared experiences of how they had been personally affected by the…violence in the region by organized armed criminal actors, including drug cartels and gangs or by State actors.” Furthermore, the violence frequently targets youth. Recruitment for gangs begins in adolescence—or younger—and there are incidents of youth being beaten by police who suspected them of gang membership.</p>
<p><b>Are children coming to the United States because of DACA?</b></p>
<p>No. U.S. immigration enforcement policy, including deferred action programs that would allow certain undocumented immigrants to remain in the United States temporarily, is not a primary cause of the migration. Notably, the rise in violence and corresponding increase in unaccompanied child arrivals precede both the Deferred Action for Childhood Arrivals (DACA) program and Senate passage of an immigration reform bill S.744—positive developments that are sometimes cited as pull factors by Obama Administration critics. In fact, in its 2012 report, the Office of Refugee Resettlement (ORR) stated that “in a five month period between March and July 2012, the UAC program received almost 7,200 referrals – surpassing FY2011’s total annual referrals,” showing that the rise in UACs predated the implementation of the DACA program. Furthermore, individuals who arrived in the country after January 1, 2007 would not be eligible for DACA.</p>
<p><b>Would more Border Patrol resources deter border crossers?</b></p>
<p>There is little evidence to support the proposition that the border must be further fortified to deter an influx of children and families. Treating the current situation as simply another wave of unauthorized immigration misses the broader policy and humanitarian concerns driving these children and families’ migration. In fact, many women and children are turning themselves over to Border Patrol agents upon arrival and are not seeking to evade apprehension.</p>
<p>Furthermore, CBP’s resources along the southwest border are already significant. There were <span style="text-decoration: underline;">18,156</span> Border Patrol agents stationed along the southwest border as of Fiscal Year (FY) 2014. The annual Border Patrol budget stood at <a href="http://www.cbp.gov/sites/default/files/documents/BP%20Budget%20History%201990-2013.pdf">$3.6 billion</a><span style="text-decoration: underline;"> in FY 2014</span>. The Border Patrol has at its command a wide <a href="http://www.isn.ethz.ch/Digital-Library/Publications/Detail/?lng=en&amp;id=146454">array</a> of surveillance technologies: ground radar, cameras, motion detectors, thermal imaging sensors, stadium lighting, helicopters, and unmanned aerial vehicles.</p>
<p><b>What are our obligations under international law?</b></p>
<p>The United States has entered into <a href="http://www.unhcr.org/pages/49da0e466.html">treaties</a> with other countries to ensure the protection and safe passage of refugees. Among the most important are the 1951 United Nations Convention Relating to the Status of Refugees and the 1967 Protocol. Under these treaties, the United States may not return an individual to a country where he or she faces persecution from a government or a group the government is unable or unwilling to control based on race, religion, nationality, political opinion, or membership in a particular social group. A separate treaty, known as the <a href="http://www.hrweb.org/legal/cat.html">Convention Against Torture</a>, prohibits the return of people to a country where there are substantial grounds to believe they may be tortured.</p>
<p>The United States has implemented these treaties in various laws and regulations. They form the basis for both our refugee program and asylum program. (An asylee is simply a refugee whose case is determined in the United States, rather than outside it.) In fact, under our laws, anyone in the United States may seek asylum, with some exceptions, or protection from torture with no exceptions. It can be difficult and complicated to determine whether an individual has a valid claim for asylum or protection from torture. To meet its protection obligations, the United States should ensure that children are safe, have an understanding of their situation and their rights, and have adequate representation when they tell their stories to a judge.</p>
<p><b>Do Central American children qualify for protections under international and U.S. law?</b></p>
<p>Many of the children fleeing to the United States have international protection needs and could be eligible for humanitarian relief. According to UNHCR’s <a href="http://www.unhcrwashington.org/sites/default/files/1_UAC_Children%20on%20the%20Run_Full%20Report.pdf">survey</a> of 404 unaccompanied children from Mexico, El Salvador, Honduras, and Guatemala, 58 percent “were forcibly displaced because they suffered or faced harms that indicated a potential or actual need for international protection.” Notably, of those surveyed, UNHCR thought 72 percent of the children from El Salvador, 57 percent from Honduras, and 38 percent from Guatemala could merit protection. While international protection standards are in some cases broader than current U.S. laws, the fact that over 50 percent of the children UNHCR surveyed might qualify as refugees suggests that a thorough and fair review of these children’s claims is necessary to prevent them from being returned to danger.</p>
<p>Moreover, children may qualify for particular U.S. forms of humanitarian relief for victims of trafficking and crime, or for children who have been abused or abandoned by a parent. A 2010 survey conducted by the Vera Institute of Justice indicated that 40 percent of children screened while in government custody could be eligible for relief from removal under U.S. laws. Given their age, the complexity of their claims, and the trauma that generally accompanies their journey, determining whether these children qualify for some form of protection can be a time-consuming process.</p>
<p><b>What types of U.S. immigration relief do children potentially qualify for?</b></p>
<p>The most common types of U.S. immigration relief for which children potentially are eligible include:</p>
<ul>
<li><b style="font-family: inherit; line-height: 1.5;">Asylum</b><span style="line-height: 1.5;">: Asylum is a form of international protection granted to refugees who are present in the United States. In order to qualify for asylum, a person must demonstrate a well-founded fear of persecution based on one of five grounds: race, religion, nationality, political opinion, or membership in a particular social group.</span></li>
<li><b style="font-family: inherit; line-height: 1.5;">Special Immigrant Juvenile Status </b><span style="line-height: 1.5;">(SIJS): SIJS is a humanitarian form of relief available to noncitizen minors who were abused, neglected, or abandoned by one or both parents. To be eligible for SIJS, a child must be under 21, unmarried, and the subject of certain dependency orders issued by a juvenile court.</span></li>
<li><b style="font-family: inherit; line-height: 1.5;">U visas</b><span style="line-height: 1.5;">: A U visa is available to victims of certain crimes. To be eligible, the person must have suffered substantial physical or mental abuse and have cooperated with law enforcement in the investigation or prosecution of the crime.</span></li>
<li><b style="font-family: inherit; line-height: 1.5;">T visas</b><span style="line-height: 1.5;">: A T visa is available to individuals who have been victims of a severe form of trafficking. To be eligible, the person must demonstrate that he or she would suffer extreme hardship involving unusual or severe harm if removed from the United States.</span></li>
</ul>
<p><b>What is the Trafficking Victims Protection Reauthorization Act (TVPRA)?</b></p>
<p>The original Trafficking Victims Protection Act was signed into law in 2000 to address human trafficking concerns. It was subsequently reauthorized during both the Bush and Obama Administrations in 2003, 2005, 2008, and 2013.</p>
<p>The TVPRA of 2008, signed by President Bush, responded to concerns that unaccompanied children apprehended by the Border Patrol “were not being adequately screened” for eligibility for protection or relief in the United States. The TVPRA also directed the development of procedures to ensure that if unaccompanied children are deported, they are safely repatriated. At the outset, unaccompanied children must be screened as potential victims of human trafficking. However, as described further below, procedural protections for children are different for children from contiguous countries (i.e., Mexico and Canada) and non-contiguous countries (all others). While children from non-contiguous countries are transferred to the Department of Health and Human Services (HHS) for trafficking screening, and placed into formal immigration court removal proceedings, Mexican and Canadian children are screened by CBP for trafficking and, if no signs of trafficking or fear of persecution are reported, may be summarily returned home pursuant to negotiated repatriation agreements. The TVPRA in 2008 also ensured that unaccompanied alien children are exempt from certain limitations on asylum (e.g., a one-year filing deadline). It also required HHS to ensure “to the greatest extent practicable” that unaccompanied children in HHS custody have counsel, as described further below—not only “to represent them in legal proceedings,” but to “protect them from mistreatment, exploitation, and trafficking.”</p>
<p><b>Can new arrivals obtain a grant of Temporary Protected Status?</b></p>
<p>Although Salvadorans and Guatemalans in the United States have been eligible for Temporary Protected Status (TPS) in the past, there currently is no category that would include children or families arriving today or at any point since the spring of 2014. TPS is a limited immigration status that allows an individual to remain temporarily in the United States because of civil war, natural disasters, or other emergency situations that make it difficult for a country to successfully reintegrate people. TPS requires a formal designation by the Secretary of Homeland Security, in consultation with the Secretary of State, and requires, among other things, that a country formally request this designation from the U.S. government.</p>
<p><b>How have other countries in the region responded to the increase in child migrants?</b></p>
<p>Mexico, with support from the United States, has responded to the increasing number of children and families fleeing Central America by expanding its security measures along its southern border as well as its internal enforcement. Part of the Mexican government’s southern border security plan is funded through the Mérida Initiative and as of October 2014, about $1.3 billion dollars in U.S. assistance went to Mexico through this initiative.</p>
<p>According to the Migration Policy Institute, migrants report an “increased presence of immigration officials in pickup trucks patrolling the roads and bus stations en route to the train line. Raids on hotels and restaurants where migrants shelter in traditional cities [i.e., cities along previously established migrant routes] have occurred. And immigration agents, in raids supported by federal police and the military, are targeting the trains, removing migrants from the train cars and detaining them. The companies that run the cargo trains on whose roofs migrants travel (referred to as “La Bestia”) also are working with the Mexican government to increase train speed in order to prevent migrants from riding on them.</p>
<p>Deportations from Mexico to the Northern Triangle countries increased significantly over the course of 2014, and this trend has continued into 2015. Mexico apprehended more than 15,795 minors between January and August of 2014, compared to 9,727 minors for all of 2013. According to a Pew Research Center analysis of data from the Mexican government, Mexico deported 3,819 unaccompanied minors from Central America during the first five months of FY 2015 – a 56% increase over the same period from FY 2014.</p>
<p>A report by the Human Rights Institute at Georgetown Law School found that while “Mexican officials are supposed to screen unaccompanied children for international protection needs, they often fail to meet this responsibility.” The report also found that the detention conditions deterred children from accessing the asylum process and that the Mexican government is failing to consistently inform children of their rights or screen them for international protection eligibility. Without these practices, the report argued, “current practices place a burden on migrant children to investigate the law and procedures and affirmatively apply for asylum.”</p>
<p><b>What is in-country processing?</b></p>
<p>In November 2014, the U.S. Department of State announced the launch of its in-country refugee processing program in El Salvador, Guatemala, and Honduras. The program is intended “to provide a safe, legal, and orderly alternative to the dangerous journey that some children are currently undertaking to the United States.” &nbsp;The new program allows parents from El Salvador, Guatemala, and Honduras who are lawfully present in the United States to submit an application to have their children join them in the United States if they qualify for refugee status or humanitarian parole.</p>
<p>Parents may submit applications for this program to the State Department. Once the application is submitted, the International Organization for Migration (IOM) will work with the child in country and invite them to pre-screening interviews. Both the child and the parent will have to submit to DNA testing to ensure the biological relationship, and DHS will conduct an interview for refugee eligibility. As with all refugees, the children will have to submit to and pass security checks to be eligible for refugee status. If they do not qualify for refugee status, it is possible that they may qualify for humanitarian parole on a case-by-case basis. Although humanitarian parole permits a person to travel safely to the United Sates to reunite with a parent, unlike refugee status, it does not provide a path to citizenship.</p>
<p>While this program will help some eligible children and their parents, its impact is expected to be limited. Any refugees admitted under this program would count against the current limit of 4,000 refugee admissions for Latin America and the Caribbean. In contrast, 68,541 children crossed the border in FY 2014. The program itself is rigorous, and its requirements—a parent with legal status and DNA and security checks—will limit who qualifies.&nbsp; Eleanor Acer of Human Rights First <a href="http://www.humanrightsfirst.org/blog/country-refugee-processing-risk-children-central-america-potential-benefits-and-risks">argued</a> that “[p]ractically speaking, the program will need to actually extend protection in a timely manner to a meaningful number of applicants if it is to be viewed as a credible alternative to some families with at-risk children.” Additionally, Acer note that in the past, U.S. officers have used “the existence of in-country resettlement…to limit access to protection.”</p>
<h3 style="font-family: Arial, Helvetica, sans-serif;">Procedures and Policies: What happens to children and families when they arrive at the border?</h3>
<p style="font-family: Arial, Helvetica, sans-serif;"><b>How are unaccompanied children treated compared to adults and children arriving in families?</b></p>
<p>How a noncitizen is treated upon apprehension depends on where the person is apprehended (near the border or in the interior), what country he or she is from (a contiguous country or a noncontiguous country), and whether he or she is an unaccompanied minor.&nbsp;</p>
<p>Adults and families, when apprehended in the interior, typically are placed in removal proceedings before an immigration judge. However, that is not necessarily the case for adults or families apprehended at or near the border. In FY 2013, 83 percent of adults removed by the U.S. were deported through <a href="http://www.immigrationpolicy.org/just-facts/removal-without-recourse-growth-summary-deportations-united-states">summary, out-of-court removal proceedings</a> by a DHS officer rather than appearing before an immigration judge. The most common summary removal processes are <a href="http://immigrationpolicy.org/just-facts/removal-without-recourse-growth-summary-deportations-united-states">expedited removal</a>, used when a noncitizen encounters immigration authorities at or within 100 miles of a U.S. border with insufficient or fraudulent documents, and reinstatement of removal, used when a noncitizen unlawfully reenters after a prior removal order.</p>
<p>As discussed in detail below, unaccompanied children receive greater protections under U.S. law.</p>
<p><b>What happens to unaccompanied children once they are in U.S. custody?</b></p>
<p>The majority of unaccompanied children encountered at the border are apprehended, processed, and initially detained by CBP.<sup>&nbsp;</sup>Unlike adults or families, though, unaccompanied children cannot be placed into expedited removal proceedings.</p>
<p>Children from non-contiguous countries, such as El Salvador, Guatemala, or Honduras, are placed into standard removal proceedings in immigration court. CBP must transfer custody of these children to Health and Human Services (HHS), Office of Refugee Resettlement (ORR), within 72 hours, as described below.</p>
<p>Each child from a contiguous country—Mexico or Canada—must be screened by a CBP officer to determine if he or she is unable to make independent decisions, is a victim of trafficking, or fears persecution in his home country. If none of these conditions apply, CBP will immediately send the child back to Mexico or Canada through a process called “voluntary return.” Return occurs pursuant to agreements with Mexico and Canada to manage the repatriation process.</p>
<p>Non-governmental organizations (NGOs) have expressed concern that CBP is the “wrong agency” to screen children for signs of trauma, abuse, or persecution. The public justice group Appleseed issued a report that stated, “as a practical matter” CBP screening “translates into less searching inquiries regarding any danger they are in and what legal rights they may have.” Appleseed also expressed concern that the U.S.-Mexico repatriation agreement has been geared towards “protocols of repatriations logistics,” rather than best practices for child welfare.</p>
<p><b>Do children get attorneys?</b></p>
<p>In general, children facing deportation—just like adults facing deportation—are not provided government-appointed counsel to represent them in immigration court. Under the immigration laws, all persons have the “privilege” of being represented “at no expense to the Government.” This means that only those individuals who can afford a private lawyer or those who are able to find pro bono counsel to represent them free of charge are represented in immigration court. And, although Congress has directed the Secretary of Health and Human Services (HHS) to ensure the provision of counsel to unaccompanied children “to the greatest extent practicable,” Congress further explained that the Secretary “shall make every effort to utilize the services of pro bono counsel who agree to provide representation to such children without charge.”</p>
<p>A vast network of pro bono legal service providers has responded to the call, and during the past year, the Obama Administration provided some funding to legal service providers in order to increase representation for unaccompanied children. The justice AmeriCorps program, announced in June 2014, awarded $1.8 million for representation of certain children in immigration court, and HHS subsequently provided an additional $9 million for representation in FY 2014 and FY 2015.&nbsp;</p>
<p>But while pro bono legal service providers represent many children nationwide, they still are unable to meet the need. As of April 2015, children in over 38,000 pending cases remained unrepresented. These children are forced to appear before an immigration judge and navigate the immigration court process, including putting on a legal defense, without any legal representation. In contrast, DHS, which acts as the prosecutor in immigration court and argues for the child’s deportation, is represented in every case by a lawyer trained in immigration law. As a result, advocates, including the American Immigration Council, filed a nationwide class-action lawsuit challenging the federal government's failure to provide children with legal representation in immigration court. The case, <a href="http://www.legalactioncenter.org/litigation/appointed-counsel-children-immigration-proceedings"><i>JEFM v. Holder</i></a>, is currently pending before a federal district court in Washington State.</p>
<p><b>How have immigration courts responded to the increased volume of cases?</b></p>
<p>In the summer of 2014, the Executive Office for Immigration Review (EOIR), the division within the Department of Justice which houses the immigration courts, adopted a new policy with respect to prioritizing cases for adjudication. The stated goal of this new policy was to “[f]ocus the department’s immigration processing resources on recent border crossers” (i.e., individuals who arrived on or after May 1, 2014). Under the policy, the immigration courts are to prioritize the following cases: (1) unaccompanied children who recently crossed the southwest border; (2) families who recently crossed the border and are held in detention; (3) families who recently crossed the border but are on “alternatives to detention” and (4) other detained cases. Immigration courts now schedule a first hearing for unaccompanied children within 21 days of the court’s receiving the case. Given the speed at which these cases progress, the expedited children’s dockets often are referred to as “rocket dockets.” Children on the rocket dockets may be provided with less time to find attorneys before immigration courts move forward with their cases—and, as a result, may be required to explain why they should not be deported without the help of an attorney. If they are unable to do so, unrepresented children may be ordered removed or required to “voluntarily” depart from the United States.</p>
<p><b>Can unaccompanied children be detained?</b></p>
<p>Yes, but special laws govern the custody of children based on child welfare standards that take the “best interests” of the child into account. Unaccompanied children must be transferred by DHS to the custody of HHS within 72 hours of apprehension, under the Homeland Security Act of 2002 and TVPRA of 2008. HHS’s Office of Refugee Resettlement (ORR) then manages custody and care of the children until they can be released to family members or other individuals or organizations while their court proceedings go forward.</p>
<p>Under the TVPRA of 2008, HHS is required to “promptly place” each child in its custody “in the least restrictive setting that is in the best interests of the child.” As such, children in ORR care are generally housed through a network of state-licensed, ORR-funded care providers, who are tasked with providing educational, health, and case management services to the children.&nbsp;</p>
<p>Under international law, children “should in principle not be detained at all,” according to UNHCR. Detention, if used, should only be a “measure of last resort” for the “shortest appropriate period of time,” with an overall “ethic of care.” Detention has “well-documented” negative effects on children’s mental and physical development, including severe harm such as anxiety, depression, or long-term cognitive damage, especially when it is indefinite in nature.</p>
<p>Children who arrive with a parent may be detained by DHS in family detention centers, described below.</p>
<p><b>Can unaccompanied children be released from custody?</b></p>
<p>Yes. ORR seeks to reunify children with family members or release them to other individual or organizational sponsors whenever possible, on the grounds that children’s best interests are served by living in a family setting. ORR also is required to ensure that individuals taking custody of the children are able to provide for their well-being. Federal regulations, following a court <a href="https://www.aclu.org/files/pdfs/immigrants/flores_v_meese_agreement.pdf">settlement</a> in the case <i>Flores v. Reno</i>, outline the following preferences for sponsors: (1) a parent; (2) a legal guardian; (3) an adult relative; (4) an adult individual or entity designated by the child’s parent or legal guardian; (5) a licensed program willing to accept legal custody; or (6) an adult or entity approved by ORR. The sponsor must agree to ensure that the child attends immigration court.</p>
<p>As of May 2014, ORR reported that the average length of stay in its facilities was approximately 35 days and that about 85 percent of the children served are released while their deportation proceedings are in progress.</p>
<p><b>Does the Government detain families?</b></p>
<p>Yes. The increase in families fleeing violence and arriving at the southwest border—frequently mothers with children—has reignited a debate over the appropriate treatment of families in the immigration system. Family immigration detention has a complicated and troubled history in the U.S.</p>
<p>Prior to 2006, ICE commonly detained parents and children separately. In FY 2006 appropriations language, however, Congress directed ICE to either “release families,” use “alternatives to detention such as the Intensive Supervised Appearance Program,” or, if necessary, use “appropriate” detention space to house families together. ICE responded by opening the T. Don Hutto Residential Center in Texas, with over 500 beds for families. But, as the Women’s Refugee Commission explained, the “Residential Center” was a “former criminal facility that still look[ed] and [felt] like a prison.” The Hutto detention center became the subject of a lawsuit, a human rights investigation, multiple national and international media reports, and a national campaign to end family detention. In 2009, ICE ended the use of family detention at Hutto, withdrew plans for three new family detention centers, and said that detention would be used more “thoughtfully and humanely.”</p>
<p>Yet, in the summer of 2014, in response to the increase in families fleeing violence and arriving at the southwest border, the federal government established a makeshift detention center on the grounds of the Federal Law Enforcement Training Center in Artesia, New Mexico, a remote location more than three hours’ drive from the nearest major city. According to the DHS Secretary, the detention and prompt removal of families was intended to deter others from coming to the United States.</p>
<p>Over the course of the summer and fall 2014, over hundreds of women and children were detained in Artesia. The facility was ultimately closed several months later, but the government has continued its policy of detaining women and children. Currently families are housed in three facilities: the South Texas Family Residential Center in Dilley, Texas, Karnes County Residential Center in Karnes City, Texas, and Berks Family Residential Center in Leesport, Pennsylvania. Both the Dilley and Karnes facilities are owned and operated by private prison companies. By the end of May 2015, Dilley’s capacity will be 2,400, making it by far the largest family detention center in the United States.&nbsp;</p>
<p>Family detention is rarely in the “best interests of the child,” as opposed to community-based alternatives. Detaining children leads to serious mental health problems and chronic illnesses, and detaining families can have long-lasting effects on the psychological well-being of both parents and children.</p>
<p>In 2014 and 2015, several detained families filed lawsuits to challenge various aspects of family detention.&nbsp; One case challenges the government’s policy of detaining families as a means to deter others from coming to the United States. In this case, <a href="https://www.aclu.org/cases/rilr-v-johnson"><i>RILR v. Johnson</i></a>, a federal court issued a preliminary injunction to prevent the government from using deterrence as a factor in making a bond determination. In a second case, lawyers for children held in family detention facilities have <a href="http://centerforhumanrights.org/PDFs/FloresPressRelease020215.pdf">claimed</a> that the government is violating the terms of the settlement agreement in <i>Flores</i>, discussed above. This settlement established national standards for the detention, release and treatment of children detained by DHS for deportation.</p>
<p><b>Can alternatives to detention be used for families?</b></p>
<p>Yes. ICE operates two alternatives to detention (ATD) programs for adult detainees—a “full service” program with case management, supervision, and monitoring (either by GPS or telephone check-in), and a “technology-only” program with monitoring only. According to U.S. government data, 95 percent of participants in ICE’s full service program appeared at scheduled court hearings from fiscal years 2011 to 2013. Further, in FY 2012 only 4 percent were arrested by another law enforcement agency. ICE’s alternatives program, as well as being more humane, is also less expensive than detention—$10.55/day as opposed to $158/day. As to asylum seekers, a prior U.S. government-commissioned study found that “asylum seekers do not need to be detained to appear,” and “[t]hey also do not seem to need intensive supervision.” Bipartisan support has emerged for alternatives to immigration detention. ICE, in early 2015, issued requests for proposals for “family case management services” for up to 300 families apiece in Baltimore/Washington, NYC/Newark, Miami, Chicago and Los Angeles.</p>
<h2><b>U.S. Government Response and Proposed Solutions</b></h2>
<p>During the summer of 2014, the Obama Administration’s response to Central American children and families arriving in the U.S. focused largely on enforcement measures, rather than humanitarian measures that had previously received legislative support, and would have been more tailored towards the vulnerable arriving population.</p>
<p>The Administration requested significant funding to support an “aggressive deterrence strategy” and implemented family detention and “rocket dockets” for children and families. Its in-country refugee processing program has been expected to assist relatively few people. Congressional legislative proposals, at the time and since, have largely focused on rolling back procedural protections for children. That said, proposals also exist to more holistically protect children and families reaching the United States, several of which passed the Senate in 2013 as part of its comprehensive immigration reform bill.&nbsp;</p>
<p><b>U.S. Government Response—Administration’s and Congress’ Actions</b></p>
<p>The following table summarizes the Administration’s and Congress’ major actions since summer 2014:</p>
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<p style="margin-bottom:0in;margin-bottom:.0001pt; text-align:center" align="center" class="MsoNormal"><b>Date<o:p></o:p></b></p>
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<p style="margin-bottom:0in;margin-bottom:.0001pt; text-align:center" align="center" class="MsoNormal"><b>Who<o:p></o:p></b></p>
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<p style="margin-bottom:0in;margin-bottom:.0001pt; text-align:center" align="center" class="MsoNormal"><b>Action Taken<o:p></o:p></b></p>
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<p style="margin-bottom:0in;margin-bottom:.0001pt; text-align:center" align="center" class="MsoNormal">June 2, 2014</p>
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<p style="margin-bottom:0in;margin-bottom:.0001pt; text-align:center" align="center" class="MsoNormal">President Obama</p>
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<p style="margin-bottom: 0.0001pt;" align="left" class="MsoNormal">Declared “<a href="https://www.whitehouse.gov/the-press-office/2014/06/02/presidential-memorandum-response-influx-unaccompanied-alien-children-acr"><span style="text-decoration:none;text-underline:none">urgent humanitarian situation</span></a>” and directed a coordinated federal response under emergency homeland security authorities.<span class="MsoEndnoteReference"> </span></p>
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<p style="margin-bottom:0in;margin-bottom:.0001pt; text-align:center" align="center" class="MsoNormal">June 20, 2014</p>
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<p style="margin-bottom:0in;margin-bottom:.0001pt; text-align:center" align="center" class="MsoNormal">DHS</p>
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<p style="margin-bottom: 0.0001pt;" align="left" class="MsoNormal">Announced intention to detain families at the Border Patrol training center in Artesia, NM.<span class="MsoEndnoteReference"> </span>Detainees arrived in Artesia around the beginning of July.<span class="MsoEndnoteReference"> </span>&nbsp;</p>
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<p style="margin-bottom:0in;margin-bottom:.0001pt; text-align:center" align="center" class="MsoNormal">June 30, 2014</p>
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<p style="margin-bottom:0in;margin-bottom:.0001pt; text-align:center" align="center" class="MsoNormal">President Obama</p>
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<p style="margin-bottom: 0.0001pt;" align="left" class="MsoNormal">Sent <a href="https://www.whitehouse.gov/the-press-office/2014/06/30/letter-president-efforts-address-humanitarian-situation-rio-grande-valle"><span style="text-decoration:none;text-underline:none">letter</span></a> to Congressional leaders declaring intent to seek emergency funding for “<span>an aggressive deterrence strategy focused on the removal and repatriation of recent border crossers.</span>”<span class="MsoEndnoteReference"> </span>&nbsp;</p>
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<p style="margin-bottom:0in;margin-bottom:.0001pt; text-align:center" align="center" class="MsoNormal">July 8, 2014</p>
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<p style="margin-bottom:0in;margin-bottom:.0001pt; text-align:center" align="center" class="MsoNormal">President Obama</p>
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<p style="margin-bottom: 0.0001pt;" align="left" class="MsoNormal">Sent <a href="https://www.whitehouse.gov/sites/default/files/omb/assets/budget_amendments/emergency-supplemental-request-to-congress-07082014.pdf"><span style="text-decoration:none;text-underline:none">letter</span></a> to Speaker Boehner (attaching OMB analysis) requesting $3.7 billion in emergency appropriations.<span class="MsoEndnoteReference"> </span>&nbsp;&nbsp;Request included:<span class="MsoEndnoteReference"> </span></p>
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<li><b style="font-family: inherit; line-height: 1.5;">HHS</b><span style="line-height: 1.5;">: $1.8 billion for care of unaccompanied children</span></li>
<li><b style="font-family: inherit; line-height: 1.5;">DHS-ICE</b><span style="line-height: 1.5;">: $1.1 billion (incl. $879 million for detention and removal)</span></li>
<li><b style="font-family: inherit; line-height: 1.5;">DHS-CBP</b><span style="line-height: 1.5;">: $432 million (incl. $364 million for additional apprehensions)</span></li>
<li><b style="font-family: inherit; line-height: 1.5;">State</b><span style="line-height: 1.5;">: $295 million in Central American foreign aid</span></li>
<li><b style="font-family: inherit; line-height: 1.5;">DOJ-EOIR</b><span style="line-height: 1.5;">: $45 million for additional immigration judges, $15 million to provide lawyers for children.</span></li>
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<p style="margin-bottom:0in;margin-bottom:.0001pt; text-align:center" align="center" class="MsoNormal">July 9, 2014</p>
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<p style="margin-bottom:0in;margin-bottom:.0001pt; text-align:center" align="center" class="MsoNormal">DOJ-EOIR</p>
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<p style="margin-bottom: 0.0001pt;" align="left" class="MsoNormal"><span>Immigration courts prioritized cases of recent border crossers who are unaccompanied children, families in detention, and families on alternatives to detention.<span class="MsoEndnoteReference"> </span>&nbsp;<o:p></o:p></span></p>
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<p style="margin-bottom:0in;margin-bottom:.0001pt; text-align:center" align="center" class="MsoNormal">July 11, 2014</p>
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<p style="margin-bottom:0in;margin-bottom:.0001pt; text-align:center" align="center" class="MsoNormal">DHS</p>
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<p style="margin-bottom: 0.0001pt;" align="left" class="MsoNormal"><span>Modified contract with Karnes County, TX to detain families at ICE’s existing detention facility for adults there.<span class="MsoEndnoteReference"> </span>&nbsp;&nbsp;<o:p></o:p></span></p>
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<p style="margin-bottom:0in;margin-bottom:.0001pt; text-align:center" align="center" class="MsoNormal">July 31, 2014</p>
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<p style="margin-bottom:0in;margin-bottom:.0001pt; text-align:center" align="center" class="MsoNormal">Senate</p>
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<p style="margin-bottom: 0.0001pt;" align="left" class="MsoNormal"><span>Bill to provide $2.7 billion in emergency appropriations failed in procedural vote.<span class="MsoEndnoteReference"> </span></span><b><o:p></o:p></b></p>
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<p style="margin-bottom:0in;margin-bottom:.0001pt; text-align:center" align="center" class="MsoNormal">August 1, 2014</p>
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<p style="margin-bottom:0in;margin-bottom:.0001pt; text-align:center" align="center" class="MsoNormal">House of Representatives</p>
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<ul>
<li><span style="line-height: 1.5;">Passed legislation to repeal DACA.</span></li>
<li>Also passed legislation to provide&nbsp;$694 million in emergency appropriations,&nbsp;&nbsp;and the “Secure the Southwest Border Act” to roll back procedural protections for&nbsp;Central American&nbsp;unaccompanied children.</li>
</ul>
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<p style="margin-bottom:0in;margin-bottom:.0001pt; text-align:center" align="center" class="MsoNormal">August 1, 2014</p>
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<p style="margin-bottom:0in;margin-bottom:.0001pt; text-align:center" align="center" class="MsoNormal">DHS</p>
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<ul>
<li><span style="line-height: 1.5;">Announced intent to&nbsp;transfer $405 million from other DHS programs to address humanitarian challenge. Congressional Appropriations Committees finished approving transfers to ICE on August 6. &nbsp;</span></li>
<li><span style="line-height: 1.5;">ICE began to detain families at Karnes, TX detention facility.</span></li>
</ul>
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<p style="margin-bottom:0in;margin-bottom:.0001pt; text-align:center" align="center" class="MsoNormal">September 22, 2014</p>
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<p style="margin-bottom:0in;margin-bottom:.0001pt; text-align:center" align="center" class="MsoNormal">DHS</p>
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<p style="margin-bottom: 0.0001pt;" align="left" class="MsoNormal">Agreed to pay town of Eloy, AZ to modify its existing agreement with ICE so that the private company CCA can build a new family detention facility in Dilley, TX.<span class="MsoEndnoteReference"> </span>&nbsp;DHS publicly confirmed the opening of Dilley the next day.</p>
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<p style="margin-bottom:0in;margin-bottom:.0001pt; text-align:center" align="center" class="MsoNormal">November 18, 2014</p>
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<p style="margin-bottom:0in;margin-bottom:.0001pt; text-align:center" align="center" class="MsoNormal">DHS</p>
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<p style="margin-bottom: 0.0001pt;" align="left" class="MsoNormal">Announced ICE will close the Artesia, NM family detention facility and transfer the detainees to the new Dilley, TX family detention facility.<span class="MsoEndnoteReference"> </span></p>
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<p style="margin-bottom:0in;margin-bottom:.0001pt; text-align:center" align="center" class="MsoNormal">December 3, 2014</p>
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<p style="margin-bottom:0in;margin-bottom:.0001pt; text-align:center" align="center" class="MsoNormal">State Dep’t</p>
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<p style="margin-bottom: 0.0001pt;" align="left" class="MsoNormal">Launched in-country refugee processing program in El Salvador, Guatemala, and Honduras.<span class="MsoEndnoteReference"> </span></p>
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<p style="margin-bottom:0in;margin-bottom:.0001pt; text-align:center" align="center" class="MsoNormal">December 16, 2014</p>
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<p style="margin-bottom:0in;margin-bottom:.0001pt; text-align:center" align="center" class="MsoNormal">Congress and President Obama</p>
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<p style="margin-bottom: 0.0001pt;" align="left" class="MsoNormal">FY 2015 “Cromnibus” appropriations bill, signed by President, provided:<span class="MsoEndnoteReference"><span style="font-family: &quot;Arial&quot;,&quot;sans-serif&quot;;mso-fareast-font-family:Arial;mso-ansi-language:EN"> </span></span></p>
<p style="margin: 0in 0in 0.0001pt 0.25in;" align="left" class="MsoNormal">&nbsp;</p>
<ul>
<li><b style="font-family: inherit; line-height: 1.5;">HHS</b><span style="line-height: 1.5;">: </span><span style="line-height: 1.5;">$80 million increase to care for unaccompanied children</span></li>
<li><b style="font-family: inherit; line-height: 1.5;">State</b><span style="line-height: 1.5;">: </span><span style="line-height: 1.5;">$260 million to implement a “prevention and response strategy” in Central America</span></li>
<li><b style="font-family: inherit; line-height: 1.5;">DOJ-EOIR</b><span style="line-height: 1.5;">: </span><span style="line-height: 1.5;">$35 million increase for immigration courts</span></li>
<li><b style="font-family: inherit; line-height: 1.5;">Education</b><span style="line-height: 1.5;">: </span><span style="line-height: 1.5;">$14 million to assist state and local educational agencies experiencing increases in immigrant youth.</span></li>
</ul>
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<p style="margin-bottom:0in;margin-bottom:.0001pt; text-align:center" align="center" class="MsoNormal">February 2, 2015</p>
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<p style="margin-bottom:0in;margin-bottom:.0001pt; text-align:center" align="center" class="MsoNormal">President Obama and DHS</p>
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<p style="margin-bottom: 0.0001pt;" align="left" class="MsoNormal">The Administration’s request for DHS funding for FY 2016 included:<span class="MsoEndnoteReference"> </span></p>
<p style="margin: 0in 0in 0.0001pt 0.25in;" align="left" class="MsoNormal">&nbsp;</p>
<ul>
<li><b style="font-family: inherit; line-height: 1.5;">DHS-ICE</b><span style="line-height: 1.5;">: $893 million for salaries and expenses over FY ’15 request, incl. $615 million increase for detention ($435 million for family detention)</span></li>
<li><b style="font-family: inherit; line-height: 1.5;">DHS-CBP</b><span style="line-height: 1.5;">: $743 million increase for salaries and expenses over FY ’15 request.</span></li>
</ul>
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<p style="margin-bottom:0in;margin-bottom:.0001pt; text-align:center" align="center" class="MsoNormal">March 4, 2015</p>
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<p style="margin-bottom:0in;margin-bottom:.0001pt; text-align:center" align="center" class="MsoNormal">Congress and President Obama</p>
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<p style="margin-bottom: 0.0001pt;" align="left" class="MsoNormal">FY 2015 DHS Appropriations bill, signed by President, provided:<span class="MsoEndnoteReference"><span style="font-family:&quot;Arial&quot;,&quot;sans-serif&quot;; mso-fareast-font-family:Arial;mso-ansi-language:EN"> &nbsp;</span></span><span><o:p></o:p></span></p>
<p style="margin: 0in 0in 0.0001pt 0.25in;" align="left" class="MsoNormal">&nbsp;</p>
<ul>
<li><b style="font-family: inherit; line-height: 1.5;">DHS-ICE</b><span style="line-height: 1.5;">: </span><span style="line-height: 1.5;">$703 million increase for salaries and expenses, incl. $539 million increase for detention ($362 million for family detention)<span class="MsoEndnoteReference">&nbsp;&nbsp;</span></span></li>
<li><b style="font-family: inherit; line-height: 1.5;">DHS-CBP</b><span style="line-height: 1.5;">: </span><span style="line-height: 1.5;">$314 million increase for salaries and expenses over FY ’14.</span></li>
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<p style="margin-bottom:0in;margin-bottom:.0001pt; text-align:center" align="center" class="MsoNormal">May 27 and June 1, 2015</p>
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<p style="margin-bottom:0in;margin-bottom:.0001pt; text-align:center" align="center" class="MsoNormal">House and Senate</p>
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<p style="margin-bottom: 0.0001pt;" align="left" class="MsoNormal">136 Representatives and 33 Senators wrote letters asking DHS Secretary Johnson to end family detention.<span class="MsoEndnoteReference"> </span></p>
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</tbody>
</table>
<p>&nbsp;</p>
<p><b style="font-family: inherit; line-height: 1.5;">Recent Legislative Proposals</b></p>
<p>Since the summer of 2014, most legislative proposals have focused on rolling back the procedural protections that the TVPRA affords to Central American unaccompanied children. For example, the House’s 2014 “Secure the Southwest Border Act” would have amended the TVPRA to (1) treat children from non-contiguous countries similarly to Mexican and Canadian children, but (2) strike the current requirement that the child be able to make an “independent decision to withdraw the child’s application for admission” before proceeding with voluntary return; (3) require those children who may have been trafficked or fear return [or require the remaining children] to appear before an immigration judge for a hearing within 14 days of screening; and (4) impose mandatory detention until that hearing.&nbsp;</p>
<p>Other proposals have offered variations on these themes. For example, the “Protection of Children Act of 2015,” which the House Judiciary Committee moved forward on March 4, 2015, would enact the above four changes—but additionally, expand from 72 hours to 30 days the time limit for CBP to transfer remaining unaccompanied children to HHS custody. That bill, among others, also proposes restricting HHS’ ability to provide counsel to unaccompanied children.<sup> </sup>Or, the “HUMANE Act,” sponsored by Sen. John Cornyn (R-TX) and Rep. Henry Cuellar (D-TX) in 2014,<sup> </sup>would have gone further to place children with a fear of return into a new 7-day expedited process, during which the child would be required to prove her eligibility for immigration relief to an immigration judge while mandatorily detained, before moving on to a standard removal proceeding in immigration court.&nbsp;</p>
<p><b>Proposed Solutions</b></p>
<p>Before summer 2014, bipartisan support existed for legislative reforms to more holistically protect children and families reaching the United States. Since then, NGOs and advocacy groups have reiterated support for those reforms, as well as for aid to address root causes of child and family migration from Central America.</p>
<p>These reforms include:</p>
<ul>
<li><b><i>Incorporating a “best interests of the child” standard into all decision-making, not just custody decisions</i></b>. Bipartisan immigration reform legislation which passed the Senate in 2013 (S. 744) would have required the Border Patrol, in making repatriation decisions, to give “due consideration” to the best interests of a child, “family unity,” and “humanitarian concerns.” Amendment 1340 to S. 744, which was not voted on as part of a compromise, would have made the best interests of a child the “primary consideration” in all federal decisions involving unaccompanied immigrant children. Organizations have also recommended adopting more child-specific procedures. </li>
<li><b><i>Child welfare screening to replace or augment Border Patrol screening</i></b>. Border Patrol agents are currently tasked with screening Mexican and Canadian children for trafficking and persecution and preventing their return to persecutors or abusers. NGOs have uniformly questioned Border Patrol’s ability to do so adequately, and reform proposals have ranged from improved training for CBP officers (included in S. 744), to pairing CBP screeners with child welfare experts (also in S. 744) or NGO representatives, to replacing CBP screeners with USCIS asylum officers. CBP Commissioner Kerlikowske recently expressed openness towards similar proposals.&nbsp;</li>
<li><b><i>Due process protections and resources</i></b>. NGOs have advocated for a system that provides procedural protections and resources to appropriately protect children and families from violence, under international and U.S. laws, without unduly delaying decision making. Proposals include appointed counsel, additional resources to legal orientation programs and additional resources to backlogged immigration courts (all included in S. 744). More recent proposals also include additional U.S. Citizenship and Immigration Services (USCIS) asylum officers, and additional post-release caseworker services, to protect children, assist families, and ensure attendance at proceedings.&nbsp;</li>
<li><b><i>Detention reforms</i></b>. NGOs have proposed that children be detained as little as possible, released to families or other sponsors whenever appropriate, and if detained, supervised in a community-based setting because of detention’s severe impact on children. At least one Senator has promised legislation to end the detention of asylum-seeking families if no family member poses a threat to the public or a flight risk. Along these lines, organizations and legislators have recommended improving detention conditions, and expanding alternatives to detention (as S. 744 proposed), by reallocating detention funding to those cheaper alternatives.</li>
<li><b><i>Aid to sending countries.</i></b> NGOs have proposed aid to sending countries and Mexico, to invest in systems that protect and care for children, help youth live productive lives, and ultimately reduce violence and address root causes of flight. In January 2015, the White House announced it was seeking $1 billion in Central American assistance in its FY 2016 budget.</li>
</ul>
</p>
<p>Published On: <strong><span class="date-display-single">Fri, Jun 26, 2015</span> </strong>| <a href="/sites/default/files/docs/a_guide_to_children_arriving_at_the_border_and_the_laws_and_policies_governing_our_response.pdf" target="_blank">Download File</a></p>Special ReportsBorderPolicyThu, 25 Jun 2015 22:26:39 +0000aic_admin3559 at http://www.immigrationpolicy.org